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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-11-29 Daily Xml
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WORK HEALTH AND SAFETY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 November 2011.)

The Hon. A. BRESSINGTON (16:08): I rise to indicate my position on the Work Health and Safety Bill 2011 and specifically why I will be supporting amendments to delay its introduction amongst other proposed amendments by the Liberal Party. However, I do believe that an amendment to delay the bill is not an appropriate action, so let us wait and see how that happens.

Along with other crossbenchers, I have for some time been bombarded by emails from those in the residential building industry—literally from single-man operations to small family-owned country businesses to large commercial developers—expressing their concerns that the bill and associated regulations will significantly increase their compliance costs, and as such the price of residential homes without increasing workplace safety.

I believe many cite the independent analysis by Hudson Howells, which finds that the bill will potentially cost the state economy $1.425 billion in annual economic activity, of which $285 million will be lost by the home building industry due to the increase in the price of new homes, and potentially cost $12,500 jobs per annum, 2,500 of which are in the building sector.

Whilst these are necessarily only preliminary estimates, these claims are nonetheless supported by the well-respected international firm Rider Levett Bucknall, who confirm the Housing Industry Association's estimates of the cost of compliance at $20,000 for a single-storey home and $28,000 for a double-storey home.

Housing affordability must be a priority for this parliament. It has surely escaped no member's attention just how tough many residents of this state are doing it. With escalating prices, the great Australian dream of home ownership is becoming less and less attainable, particularly for first homebuyers. At a time of such uncertainty and when we are scaling back government assistance, I fear the foreshadowed cost increases will be too much for many to bear. As the Hudson Howells analysis shows, the impact of this bill will not solely be felt by potential homebuyers but also, of course, those who would otherwise be building the homes this state so desperately needs, with up to 2,500 jobs in the building sector alone under threat.

Whilst I acknowledge that these claims are disputed by the government, unions and others, with suggestions of double counting and by proffering contrary analysis, I have nonetheless accepted that the increased requirements on the building industry will have a significant cost impact on the price of a new home. This is influenced by both the legal advice provided to the industry and me personally, which suggests a significant remodelling of the principal, contractor and subcontractor relationship will be required, as I will now detail.

Like other members, I have also been approached by representatives of the Housing Industry Association and the Master Builders Association, who have raised serious concerns about the specific impact the bill will have on the residential housing industry. Each has conveyed or provided written opinions by prominent legal practitioners, including Queen's Counsel, expressing concern about the proposed formulation of employers' or principals' liability expressed in section 19, referred to as 'the person conducting a business or undertaking a test, amongst other duties'.

Unlike the existing control test in section 22 of the Occupational Health, Safety and Welfare Act 1986, the new duty on employers is not constrained by a requirement that the employer or, depending on the structure, the principal have actual control over the risk-taking activity in order to be liable. Instead, the only restraint on an employer's liability is the rider to which SafeWork SA, the minister and the unions point, that the employer must only take such steps as are reasonably practicable.

Mr Richard Whitington QC, from Hanson Chambers, who accepted a brief at the request of the Housing Industry Association to advise on the implications of the bill for builders in the residential home industry, states in his advice that this restriction is likely to be 'of very limited operation for a home builder'. This follows a detailed analysis of the existing Occupational Health, Safety and Welfare Act and the judicial interpretation of the actual control test within it and the likely interpretation of its lesser equivalent in the bill. Mr Whitington QC goes on to state:

SafeWork SA's attitude to the more stringent restriction on duty or liability of 'actual control', (referring to the existing OHSW Act)...it is likely that SafeWork SA does not or will not see an absence of control, as any bar to a home builder being reasonably required and reasonably able to discharge the duties in, for example, subsections 19, 20 and 26 of the 2011 bill, including for example by employing special supervisors and frequent and consistent monitoring of the work practices of their expert contractors and subcontractors.

It is to be expected that, in practice, under the provisions of the bill the burden of ensuring contractors and subcontractors on home building sites conduct their activities safely will fall on the employer/principal. To what extent this imposes unsustainable costs on the employer/principal and shifts practical responsibility away from contractors and subcontractors where it presently, and critically, rests, is a matter for the industry to judge.

As I have said, the housing industry has judged and found the increase in costs to be significant and the burden too great to carry. It is such opinions by such eminent barristers that have made it difficult to accept SafeWork SA's and the minister's assurances that employers and principals will be able to discharge their duty by simply having contractors and subcontractors sign a pro forma spelling out their obligations. I have no doubt that the Housing Industry Association finds this equally hard to swallow.

Mr Whitington QC is by no means alone. In advice to the HIA, Ms Elizabeth Perry, a partner at EMA Legal, warns:

...the shift from the recognised concept of control to a new untested concept of PCBUs is likely to result in a great deal of confusion and costly, extensive court cases as to the true meaning and extent of responsibility.

It is here that I fear we will see the interpretation foreshadowed by Mr Whitington QC play out. Ms Perry then adds:

...the combination of the duties for PCBUs, the new definition of a workplace and the duties imposed by the new Regulations and Codes of Conduct will change in a fundamental manner the way that residential builders are able to conduct their work processes and compliance practices. Costs will necessarily increase substantially.

Also expressing his concerns to the HIA is the former Australian building and construction commissioner, and now Director of Work Reform and Productivity at the Institute of Public Affairs, the Hon. John Lloyd. In a letter to the HIA SA Executive Director, Mr Lloyd states:

My examination of the WHS Bill leads me to the conclusion that it is a significant departure from widely accepted Australian and international occupational health and safety (OHS) principles...

It is my view that the WHS Bill and proposed association regulations do not provide a better mechanism to reduce the incidence of workplace injuries and death. Instead the WHS Bill is likely to cause confusion in the workplace as each person attempts to ascertain the nature of the duty of care they may be responsible for under the legislation. If they are able to ascertain the nature of their duty of care I anticipate that they will then encounter difficulty in determining how they should go about discharging their duty. Confusion and uncertainty about such fundamental responsibilities could make workplaces less safe and result in an increase of the number of workplace incidents.

The WHS Bill introduces new concepts into the previously accepted notion as to who is responsible for the control of occupational health and safety of a workplace. Previous legislation in Australia recognised the primary duty of care as emanating from the employer's capacity to control a workplace and take reasonably practicable steps to minimise risk. Obligations were also recognised for employees, contractors, occupiers of premises, and makers and suppliers of plant and equipment. These obligations were also related to the degree of control they exercised and the consequent capacity to mitigate risk. I consider that it is a proven and widely accepted approach that 'control' should be predominant principle in determining an OHS duty of care.

The Roebens style of legislative regulation has been accepted by Australian and many overseas jurisdictions for many years as the basis for regulating OHS. It directed OHS responsibility to those at the workplace. This contrasted to the previous approach of vesting responsibility in inspectors and regulators. The Roebens approach was about employers and responsibility for OHS. The WHS Bill departs from this approach and returns to a highly regulated and punitive system.

The WHS Bill in establishing the primary duty of care introduces a new entity 'a person conducting a business or undertaking.' The definition of the person's responsibilities is imprecise. The WHS Bill at clause 19(b) provides that the person in discharging its obligations is responsible for: 'workers whose activities in carrying out work are influenced or directed by the person'.

The introduction of influence into the definition of responsibilities has the potential to result in an expansive and contradictory jurisprudence about where the boundaries of a person's control rests. Mr Lloyd goes on to state:

The confusion about the duty of care is alarming as the WHS bill attaches harsh penalties for contravention of the obligations imposed by the duty of care. The principal penalties in Division 5 of the bill range from $100,000 to $600,000 and 5 years imprisonment.

Mr Lloyd's opinion ties in with that of the Housing Industry Association and the builders who have contacted me by email, that being that the bill will significantly add to the compliance cost without actually increasing workplace safety. For these reasons, I am supportive of moves to revert to the existing actual control test. I will also be supporting the amendment to remove union right of entry for workplace safety reasons. Whilst I acknowledge that South Australia is alone in not permitting union representatives access to worksites and also accept that SafeWork SA would benefit from the additional eyes and ears inspecting safety issues, I nonetheless believe that the proposed model places too much power in the hands of union officials on worksites where their power has been rightfully limited.

I have also heard employers' concerns about the potential abuse of power and their concern that it will lead to a unionisation of their workforce, fearing the enthusiasm for this move reveals the recruitment intention. I also indicate that I will be supporting the introduction of the right to silence in clause 172. I have spoken previously at length in this place of my concerns about the removal of the right to silence. This has been in circumstances where information extracted could not be used against the individual or business. When this is not acceptable, did the government really believe I would accept the removal of the right to silence when such a protection does not apply?

Also, moving away from issues raised by the residential building industry, I have been contacted by numerous stakeholders who have raised their concerns about the seemingly backward steps the bill, regulation and associated code of conduct take in relation to asbestos monitoring and its safe removal. The recently formed Asbestos Steering Committee, chaired by Mr Andrew Butler—who should be commended for his persistence in highlighting these issues despite the resistance and, regrettably, the threats by some in the union movement who saw his lobbying as undermining the union gains made in this bill—has identified three areas of concern.

The first relates to the somewhat contradictory relaxation of mandatory air monitoring which, in effect will only be required if a licensed removalist considers the exposure standard is likely to be exceeded. This contrasts to the existing South Australian statute which has some 20 years standing and which requires air monitoring by approved airborne fibre monitoring companies at all removals over 10 square metres, which I believe is known as the bathroom exception. Airborne monitoring is essential to ensure exposure levels are not exceeded during removal and also when an area is safe to reoccupy.

The second issue identified is increasing the period from two days to five days of notification to the regulator, SafeWork SA, of an intention to undertake asbestos removal. Whilst SafeWork SA has informed me that the vast majority of their notifications are received well in excess of the two days currently required, it is the fear of the Asbestos Steering Group that such a lengthy period is inflexible and would encourage employers to pressure removalists to push on with a job without notifying SafeWork SA.

Lastly, concerns were understandably raised about moving from yearly inspections of registered premises to five-yearly inspections. Mr Butler and others have expressed concerns about the ambiguity of the proposed review model, and that without mandatory annual reviews, building owner/occupiers will find excuses not to inspect. They also argue that the value of the annual review lies in its facilitation of onsite awareness, resulting in real time hazard management.

My office has met with representatives of SafeWork SA and the minister, who were aware of the concerns raised and sought to provide assurances to me that they were being addressed which, on the condition the minister states these assurances in the council, I am willing to accept. As such, I ask the minister to state categorically the government's intentions to continue mandatory air monitoring in the first twelve months of the operation of this bill, during which time SafeWork SA and the government will seek to convince interstate jurisdictions to also move to mandatory air monitoring. If they fail, I ask the minister to assure the council that the government will continue to require air monitoring as a licence condition for non-friable asbestos removalists.

Furthermore, in addition to the extension of the notification period, I was assured that urgent applications where there are unforeseen circumstances, or asbestos was not known of, will be given priority and, unless there are complicating circumstances, such as proximity to a school or the like, permission will be granted on the same day, which, I am led to believe, is SafeWork SA's existing practice. I ask the minister to confirm this on the record for the industry.

As for the third issue identified by the asbestos steering group, the government's position, which I share, is that, whilst moving from mandatory one-year to five-year inspections of registered premises seems at first to be a retrograde step, on balance, the increased active reporting requirements of the proposed asbestos management plan for all buildings built prior to 2003, regardless of whether they contain asbestos, is an improvement on the existing arrangements.

While a review, at the least, must be undertaken every five years, the asbestos management plan must also be reviewed when further asbestos is identified; if asbestos is disturbed, removed, sealed or enclosed and the plan is no longer adequate; or a health and safety representative requests a review. Each time a review is conducted, a visual inspection of the asbestos is required and the register revised accordingly. Whilst the new arrangement loses the regularity of an inspector coming to the site and the familiarity this engenders, I nonetheless accept that the active reporting requirements, under threat of penalty for noncompliance, will achieve the same outcome.

I look forward to seeing how this is going to continue in the house. Hopefully, the government can see the necessity for this bill to be deferred until next year and until some of the problems mentioned can be addressed in full and amendments made and agreed to.

The Hon. K.L. VINCENT (16:28): Today, I would like to speak briefly to indicate my support for the second reading of the Work Health and Safety Bill. This bill has been some years in the making. I believe that discussion and consultation rounds with stakeholders from industry, employers and the unions certainly began well before my time in this place, that is, in 2008. I am told by the Roofing Tile Association that action on falls prevention began way back when in 2004. In fact, the minister told me that in 1995 the Productivity Commission first pointed out the complications caused by having nine different jurisdictions for workplace health and safety.

So, here we are today, discussing national harmonisation on workplace safety in the form of this bill. The lobbying on this bill to crossbenchers has certainly been more intense and vigorous than on many other pieces of legislation I have had before me, and I imagine that this is because the opposition had signalled its intent to oppose this bill.

It would seem, not surprisingly, that amongst ardent supporters of this bill are all the unions and many union members. Additionally, the Australian Industry Group, Roofing Tile Association of Australia and the Working Women's Centre all maintain the need for these reforms. Meanwhile the Housing Industry Association and Business SA are not so keen to see these reforms occur in legislation and have raised a number of concerns, which include the right to silence, union right of entry, penalties and costs of implementation, and I will address some of these concerns shortly. The Master Buildings Association did not oppose the bill outright. It supported the concept of harmonisation, but it was concerned that there was not a division between the commercial and housing construction industries.

I have met with most of the organisations I have listed. I have had about a dozen submissions or delegations urging me to vote for the bill and several delegations and submissions opposing it. By this morning, I had received almost 2,000 emails in support of this bill and a small amount, in comparison, opposing it.

Workplace accidents obviously can cause some tragic deaths. Legislation which seeks to reduce this risk must be seen as a positive measure, in my opinion. In addition to possibly preventable deaths, there is also the issue of both temporary and permanent disability created by workplace accidents and injuries. Of course while I very much enjoy representing people with disabilities in the parliament, I think it is fair to say that I am keen to keep my list of constituents as short as possible. It is far more favourable to see all workers and employers in workplaces view safety and welfare in the workplace as a shared responsibility.

It is something that we all need to be mindful of and practise due diligence, and take reasonable precautions to ensure that work is safe for all, particularly in workplaces that tend to have more inherent risk such as industrial sites, whether they be construction, manufacturing or mining, and so on. Yes, accidents will still of course happen, but let us minimise the number that do occur and ensure that harm is minimised when things do go wrong.

At the SA Unions briefing a month ago I believe the Hon. John Darley raised some apprehension at the practical implementation of these harmonised laws and regulations. On that day I was speaking at a conference in Whyalla so I was not able to attend, but my adviser told me that the honourable member talked of his concerns about the resourcing of this legislation once it came into force, and I certainly believe he has a good point.

I appreciated the briefing that the minister and his staff provided on the bill, and I did query the minister on this exact point. He reassured me that there would be adequate resourcing for this legislation, and that there would be adequate enforcement and training in workplaces. My question to the minister now is: exactly what training and education programs will be implemented in the new year on these reforms?

In addition to the groups and individuals mentioned earlier, I have also been contacted by several asbestos management businesses. They are concerned that air-monitoring measures will be reduced under this legislation and worker safety put in jeopardy. I understand that the minister has made some changes to—or plans to change—this bill to appease the asbestos management industry's concerns. My question to the minister on this is: will these amendments be in relation to the bill or will this be a regulation change once legislation is enacted? What is the impact of these legislative reforms for the asbestos management industry, and how will they ensure that current protections for asbestos workers do indeed remain?

I go to some of the reservations raised by Business SA and the Housing industry Association (HIA). First, the HIA has talked with me about what it sees as very real concerns on the cost of implementing additional safety measures. Its report suggested that it would cost in excess of $21,000 for every single-storey dwelling constructed. It claims the housing industry in South Australia would be close to collapse on the passing of this bill, but it seems to me that some of its costings are based on an exaggerated state of affairs. For example, a fence is already likely to be erected for security; why would you not have one for safety? Falls prevention is, of course, essential. My brother has previously worked as a labourer on building sites and intends to do so again in future, and I would want to know that his safety is enshrined in law and that, even without reform, worksites would want to have their workers safe when working at heights.

I do think the figures provided by the HIA and its consultant, Rider Levitt Bucknall, are not an accurate reflection of the real costs. If it does indeed cost that amount to set up a site safely, that suggests to me that they do not currently employ adequate safety measures on their sites anyway. I do not expect the housing industry to collapse on the back of this bill. Instead, the minister assures me that their modelling gives a more realistic figure of an additional $2,000 at the very most.

Safety mainly takes common sense but does sometimes mean spending money, and I do not think preventing injury or saving lives is something we can very easily put a monetary figure on. At the very least, a lifetime disability that takes someone out of work when they are, say, in their 20s is likely to cost the state some millions of dollars.

The HIA also say that the number of laws and regulations they must abide by are ridiculously onerous. They have showed me photographs of the mountains of paperwork their workers will be required to comply with. They also have concerns about the imminence of the introduction on 1 January 2012. However, the minister informs me that, of the 600 pages of legislation, only 32 apply to the construction industry and there will be a 12-month grace period granted to allow for educational processes and compliance.

The HIA have said that they believe theirs is a safe industry and that their workers do not need to be told how to be safe. Mr Tony Tanner from the Roofing Tile Association tells a different story, however. He said that significant falls occur within housing construction. Both roof tilers and roof plumbers are often not unionised and are subcontractors or sole traders. Falls are under-reported as these people often self-insure and take time off work when falls and injuries do occur. Tony has had more than 40 years of experience in the industry and says housing construction is not as safe as it claims to be. Despite the likely under-reporting, there are still more than 90 reportable injuries a year in the roof tiling industry in Australia and, unfortunately, some of those have indeed resulted in deaths.

On the issue of union right of entry, the HIA is concerned that private residences may be entered by unions seeking to resolve workplace safety concerns. I do not believe this is going to occur. I do not believe that Black Hawk helicopters will appear above houses, with union officials rappelling down to invade your average home renovator in their own house. I also do not believe union entry into industrial work sites will be abused by the union, and research provided to me by Dr Kevin Purse certainly supports this assertion. Unions in South Australia do not generally have a reputation for aggressive or bullyboy tactics and I do not expect them to take this on in the future.

On the matter of self-incrimination, as a civil libertarian, I was initially concerned that the right to silence and not to self-incriminate was not adequately covered by this bill. However, following advice from the unions and further legal opinion from crown law, I am now satisfied that this is a reasonable measure, particularly where serious workplace injuries or death occur and the culture of not dobbing in your mates may prevent accurate reporting of events. I can see that the need for workplace safety and community good sits above the rights of the individual in this circumstance.

Evidence given under these provisions cannot be used to prosecute in courts and already exist in the Local Government Act and the Environment Protection Act. I would hope that, where these provisions are invoked, it is to ensure ongoing work health and safety and not for other reasons.

I have a final question to the minister on this point: will an investor or resident who renovates a house on weekends, to the extent that the renovation is worth more than $250,000, be required to have a safety inspector on site? This is a matter the Master Builders Association raised with me and I wondered if it was an accurate concern. I therefore would like to pose that question to the minister.

In summary, I am supportive of amendments that seek to harmonise laws across the country, although I acknowledge that this will not necessarily occur in the fashion that we originally hoped for, due to interstate amendments. However, I think we should plough on to make this the best legislation we can. I think that this legislation acknowledges the modern workplace, instead of previous typical workplaces, where we had employers and employee.

We now recognise that there are employers, contractors, subcontractors, sole traders and so on, and there are persons conducting a business or undertaking. All these people on a worksite will be held to account and need to provide a safe environment. I am also in the process of considering the amendments tabled by the Hon. Ms Franks and I believe that they have some merit. With those words I indicate my support for the second reading of the bill at this point

The Hon. T.A. FRANKS (16:40): I rise to speak on the Work Health and Safety Bill 2011, almost some five or six months after it was first introduced into this place. Far from falling from the sky overnight, I acknowledge that in fact this bill is the result of an impressive initiative which has taken many years of negotiation between all states and territories, stakeholder groups (including unions) and, of course, employer associations.

I indicate that the Greens have strong support for this bill before us today. I will also be moving amendments, but I certainly do not predicate the success of those amendments on support for the bill. The objective of this bill is to have one set of consistent occupational health and safety laws across the nation to cut through the current red tape and regulation arrangements so that employers and workers do not have to work with eight different sets of occupational health and safety laws and regulations, as they currently do.

Members would be aware that there are industries across the country where employees constantly need to cross state borders and are moving from one jurisdiction to another. Having one set of laws, not called 'occupational health and safety' but much more simply, I would say, and in plain English, 'work health and safety', will increase the productivity of the nation, set higher safety standards and cut red tape. If the opposition supports less government regulation of business, it would be in the interests of their constituents to support this bill.

A number of large bodies and quite credible bodies have conducted economic analyses of the new proposals, including the Productivity Commission, the Business Council of Australia, the Allen Consulting Group and Access Economics. Those reports certainly informed the Greens' support for this bill. The reports established indicate that the support for a process of harmonisation and the move to simplify regulation by cutting the additional red tape under this new model will, in fact, be good economic sense.

The point has been made that injuries caused in the workplace drive down the productivity of a particular workplace and also impose additional cost to the employers. However, by preventing injuries and implementing higher standards of work health and safety or occupational health and safety practices, employers will, in fact, find that the scheme makes their enterprises more cost-effective, as suggested by the economic analyses of the aforementioned groups.

I would like to make the point here that the nine-page report commissioned by Hudson Howells, which the opposition has been captive to, claims that the costs are estimated to be $1.4 billion to businesses moving towards this harmonisation of occupational health and safety laws. The report has no transparency in its calculations, and it seems to simply be a lobbying mechanism to delay the implementation of this scheme which the employer associations and the union groups had previously agreed to. I suggest that this report not be heavily relied on as its credibility is questionable.

The states will receive financial assistance from the commonwealth when it comes to the implementation of the new scheme, and hopefully South Australia will be participating by 1 January 2012. I think in South Australia that payment is worth some $30 million for all the COAG reforms, but if the minister could clarify that for me it would be appreciated.

As members would be aware, injuries in the workplace can take place at any time and in any form. People in the workplace need to be protected from either a physical or psychological injury—and I welcome the recognition of psychological harm that is contained within this bill, the sorts of injuries that may come about from stress, harassment and bullying—and that is certainly accommodated in this bill, and I do acknowledge that.

I would like to note that when a worker suffers from a severe injury or, indeed, there is a death in the workplace from an accident which could have been prevented, it is the families of those workers who are at the losing end. I cannot imagine looking into the faces of these families and informing them that their son, daughter, parent, friend or relative has died in the workplace from an injury which could have been prevented. If we had to explain to them that that injury could have been prevented had we had better work health and safety laws in this state, I certainly would not want to take on that job of informing those people that their loved one had died.

There are so many cases of workplace injuries and deaths, not only in our state but also across the nation, which could actually be prevented. We must recognise that we have come a long way in the improvement of work health and safety in this country over many decades. That work has come from unions working with employers productively to ensure that the best education and the best information are used whenever possible to prevent injuries; certainly in this case prevention is far better than cure.

Out of respect for the families, I will not address any particular stories in this place. However, I would make the point that we should keep in our minds as we debate this bill the stories of those families, many of whom we are familiar with, who have lost their loved ones, or who have had loved ones lose parts of their lives—whether that is through physical or psychological harm done to them through the workplace—that they will never recover. I will certainly be keeping those at the forefront of my mind as we debate this bill.

This bill contains the introduction of union right of entry in the workplace, According to arguments presented, there are only 100 inspectors relevant for 820,000 workers and more than 50,000 employers and 44,000 work-related injuries in South Australia. Union right of entry, while it does not currently exist in South Australia, certainly does exist across the country.

One of the most interesting spurious debates that I have heard is that we should not be proceeding with this bill today because WA is not going forward with it. If you actually go and have a look at what the Western Australian government has said about this bill—and we all do know that Western Australia tends to be a little bit different from the other kids when it comes to any harmonisation laws—Western Australia has certainly put on record that they are very proud of their union right of entry. They have no problem with that in the implementation of laws across the country and certainly they have stated that they would like to see that union right of entry protected by their state legislation.

Certainly that is not a point of contention from the point of view of WA, and certainly it seems to work elsewhere in the country without the terrible consequences that we are told will result in terms of our introduction of a union right of entry in this state. I think if New South Wales can do it, if Victoria can do it, if Queensland can do it, if every other state and territory except for South Australia can do it, I am not sure that the sky will fall in if we have well regulated and well monitored union right of entry in this state.

At this point I would like to acknowledge a current project that is happening in South Australia that has actually been inspired by the young workers memorial LifeQuilt project in Canada. It is being auspiced under the Working Women's Centre and it is called the LifeQuilt project. This project has been 'initiated to pay tribute to those who are woven together in life by a common thread, a fatal workplace injury'. This project seeks to bring families together who have lost loved ones, so that they can take some comfort that their loved ones will be remembered and that there is a movement to ensure that safety is made a priority in any workplace.

That movement is the union movement. I am proud to stand here today and say that the Greens are committed, alongside the union movement, to improving work health and safety in this country and in this state. We all work to ensure that members of our community return home at the end of the day without enduring a preventable injury.

I would like to foreshadow that the Greens have tabled amendments to this bill, and they will in fact seek to restore some of the current protections that we are sacrificing with this move to harmonisation. Again, far from the assertions that we have heard that this is all paying for South Australia and is taking on a whole range of new, supposedly onerous, obligations, we are in fact losing some protections that South Australians currently enjoy. Those protections—and the Greens' amendments will seek to reinstate them—include the provision of five days training for occupational health, safety and welfare to appropriate people, as currently exists in the entitlement, to ensure that we have workers in our workforce who are aware, alert and actively engaged in the prevention of workplace injuries.

We will also seek to insert the protections around workplace bullying that are currently enjoyed by South Australians. Certainly, our current laws give a nod to that with the use of the word 'welfare' in our legislation, in terms of occupational health, safety and welfare, which is a term very familiar to South Australians—a little different to the terminology used in other states. I will, as I have said, acknowledge that the bill does, in fact, contain measures around psychological harm. I would hope that that will go some way to ensuring that workplace bullying is given some due consideration in the implementation of these laws.

We will also have a look at the best practice around the country, and the Greens will be moving to replicate the right of unions and employers—or unions in particular in the New South Wales case—to ensure that those groups have the right to prosecute breaches of workplace safety as they occur. That is something that has worked very successfully in New South Wales, and certainly in New South Wales they have amended the harmonised law to maintain that protection. The New South Wales Liberal government (and I believe this was initiated by the Greens but also has the support of the shooters party and Fred Nile's group) has seen fit to keep those protections. I will be outlining the ways in which those laws have worked for people in New South Wales when I move those particular amendments.

On behalf of the Greens, I will also seek to amend this bill to insert recognition of industrial manslaughter. I have previously outlined the case for those sorts of laws in my current private member's bill and, as I say, I do not expect these amendments to get up, but I certainly think they need to be put on the table to give some perspective to this debate. When we are talking about harmonisation, it should never be the lowest common denominator; in fact, we should enjoy equal rights and have the minimum amount of what you could call red tape and the minimum amount of difference between our states, but also afford our own citizens, in whatever state we are, the best of protections within that harmonised system. On those grounds, I do not believe any of those amendments will detract from having a harmonised law.

There is an advantage in improving health and safety in a workplace by allowing a union representing its members into that workplace. When we discuss the rights of unions to prosecute, that will be something on which I will be focusing. Going back to right of entry, I would like to refer members to the second report of the National Review into Model OHS Laws which was prepared for the Workplace Relations Ministers' Council in January 2009. That report recommended the inclusion of right of entry provisions in the model legislation, so it is little surprise that we have it in the bill which sits before us today. That recommendation stated:

The majority of Australian OHS acts confer powers on authorised representatives of unions to enter workplaces...Any union official who wishes to exercise the federal right of entry must apply under and be assessed against the requirements of the federal Act. A permit will not be issued unless the applicant is a fit and proper person. In deciding that, the Industrial Registrar must consider various matters, including whether the applicant has been disqualified from having a right of entry under a State or Territory OHS law or has had such a right cancelled.

Therefore, the idea that has been floated in the debate on this bill that there will be so-called thuggish union officials storming into workplaces ostensibly to address health and safety issues but using that right to exercise undue power is completely spurious and completely without basis. There is a clear procedure that will have to be followed before these permits are issued. We must remember that at the heart of all this is the role of unions in ensuring that safety concerns for employees and employers are addressed. The rules for exercising a right of entry in the National Review into Model Occupational Health and Safety Laws report went on to say that:

...a union official intending to inspect or gain access to an employee record must [actually] give the occupier of the premises and any 'affected employer' written notice (and reasons) at least 24 hours before exercising the right. In addition, a permit holder exercising a State or Territory OHS right:

must not contravene a condition imposed on the entry permit [under] (clause 496);

must produce the entry permit for inspection when requested to do so by the occupier of the premises or an affected employer (clause 497);

may exercise a State or Territory [occupational health and safety] right only during working hours (clause 498);

must comply with any reasonable request by the occupier of the premises to comply with an OHS requirement that applies to the premises (clause 499);

must not intentionally hinder or obstruct any person, or otherwise action an improper manner (clause 500); and

must not misrepresent his or her authority under Part 3-4 [of] (clause 503).

As I say, this is not giving unions carte blanche to simply step into any workplace that they may choose to. There is a due and considered process and, certainly, it seems to work in every other state in this country.

Considerable evidence actually underscores the value of trade union officials being able to enter workplaces to assist in various ways in securing the improved occupational health and safety performance and effective outcomes, particularly when that comes to provision of support to workers who have been elected as health and safety representatives. At the international level, the involvement of workers and their representatives in occupational health and safety is, in fact, mandated by the International Labour Organisation's Occupational Safety and Health Convention, 1981. So, these are not new concepts and they are certainly not unique to South Australia.

I would note that Johnstone, Quinlan and Walters have observed that, 'Participatory mechanisms at jurisdictional, industry and workplace level play a pivotal role in Post-Robens OHS legislation in Australia.' They point to studies that establish a positive relationship between indicators of objective occupational health and safety performances and workplaces with joint arrangements or union involvement in worker representation or, in fact, a combination of the two. Studies from around the world pretty much show that, where you have got a positive relationship with unions and employers, you actually have positive outcomes both in terms of incidences, but also in terms of awareness.

The Queensland experience of union right of entry provisions under their work health and safety legislation amendment bill shows that the rights have not been abused there. They have ensured that workers have had additional sources of advice on occupational health and safety issues. Certainly, the national model itself includes the adequate checks, balances and requirements for periodical issuing of permits and successful completion of training and refresher courses and the like, as well as, of course, the disciplinary action, if necessary and appropriate. I note that the Hon. John Darley has an amendment with regard to the improper use of right of entry and, certainly, the Greens look forward to being informed about that amendment and possibly entertaining that.

In terms of the use of permits, I draw members' attention to page 72 of the Fair Work Australia 2009-10 Annual Report and the Fair Work Annual Quarterly Reports for 2010-11. The figures in this report indicate that, in the two-year period since the commencement of the Fair Work Act in July 2009, there have been 2,906 applications throughout Australia for right of entry permits but only one revocation and two suspensions. That is one revocation and two suspensions out of 2,906 applications. Certainly those figures go some way to reassuring the Greens that this does not open up any routes to a so-called abuse of union power. In fact, with that in mind, I think you would go a long way to find similar statistics where, out of 2,906 incidences, there were only three situations in which they had possibly been abused. That is certainly reassuring from the Greens point of view.

At this point, I just want to put on record that this is not about unions versus employers. Yet, often, when we do have discussions about these sorts of industrial relations issues and certainly things like right of entry, it does seem to become quite a polarised situation where people take one side or the other. The Greens do not believe that that is the way forward for Australia. We certainly acknowledge that we have good employers and we have good unions, and we have not so good employers and we have not so good unions. We are not here to prop up either; we are here to see the best outcomes; to see those who go into a workplace come out safe, well and alive.

I would also like to draw members' attention to the lobbying—and I am sure that most members are probably aware of it—from the Roofing Tile Association of Australia (RTAA). We were certainly pleased to receive information from this association, which was in fact involved for some years in the development of the code related to its industry.

The RTAA members have direct responsibility for the installation of over 90 per cent of tiles through manufacturers, contracting divisions and independent tradespeople. One of the RTAA members also has a nationwide metal roof installation business which confronts the same risks as those on roof tile installation. They pointed out that the risk and potential for injury are the same. In fact, they drew our attention to a recent situation where a tradesperson was killed in Queensland, having fallen 2.8 metres from the edge of a roof.

Had the risk control measures of the new code been in place, this accident would have been prevented. The RTAA had extensive knowledge, and I thank them for the information. They drew our attention to many similar instances that have thankfully resulted in far less traumatic and serious injury, but also to the large number of these incidences that are never reported in the official statistics. The information from the Roofing Tile Association of Australia is something that we have certainly taken on board with regards to the lobbying undertaken from the Housing Industry Association.

The RTAA was certainly very keen to see members support this bill in its current form. The consultation that had been undertaken with them as stakeholders had been many years in coming. In fact, they had been looking to have some specific work done for protection in their industry, but it was folded into this particular bill, and they were quite happy to see the many years of work on their industry acknowledged by them being subsumed by the current bill that we have before us.

Another part of the debate that we have had is the idea that nobody can handle the idea of a PCBU. If we cannot handle acronyms in occupational health and safety or work health and safety, then I think we are in the wrong place. Occupational health and safety or work health and safety are loaded with acronyms and, if people cannot handle a PCBU, then perhaps they are in the wrong place. Whether you like the idea of the language of employers or workers or whether you like the idea of occupational health and safety or work health and safety, the reality is, as we know, that language changes over time. In this case, we are seeing introduced the concept of persons conducting business or undertakings (PCBUs), and it will be the language that will be used across the country.

In terms of getting hung up on the idea that we have a new acronym to contend with, I do understand that the Hon. Terry Stephens does not like acronyms, and I certainly am not a big fan, but I have long since acknowledged that there will always be new acronyms and I will just have to deal with it, so the Greens would say that that is not a point we are going to entertain as a problem with this bill—the idea that PCBU is somehow threatening language.

I have many statistics here, but a lot of them were actually outlined quite ably by the Hon. Kelly Vincent with regard to injury rates and falls from the roof tilers, which have some great relevance, as I say, to the arguments put up against this bill from the housing industry. I will not replicate them here.

I will raise something that has not been introduced so far in this debate. Yesterday, when I was at the Our Work Our Lives mini-conference held at the Australian Services Union (auspiced by the Working Women's Centre and SA unions, I believe) there was an issue around occupational health and safety or work health and safety that was introduced that I thought possibly should have been part of the debate from the beginning and certainly I would hope would appear in any reiterations of national harmonised law.

This was put forward by the Young Workers Legal Service which, ably led by Nadine Levy and Anne Purdy, has been looking at the issue of sexual harassment in the workplace. They have actually suggested that it be put within a framework of occupational health and safety or work health and safety. I have to agree with some of their arguments, and I just put it out there for the minister to take on board for future discussion of work health and safety.

They have been doing quite an extensive body of work on this and they represent young workers, and young women workers in particular; although not exclusive to that group, certainly young women workers do suffer from sex-based harassment in their workplaces. At the moment, the protections are there, but certainly they are not afforded as such through any occupational health and safety mechanisms. They are under equal opportunity and also under the Equal Opportunity for Women in the Workplace programs, and they can go to the Human Rights and Equal Opportunity Commission as well.

The Young Workers Legal Service has proposed that, perhaps by seeing sexual harassment as a work health and safety issue—and certainly there are areas there where psychological harm and, in fact, potentially other injury can occur—this should actually be reframed and seen in a preventative way as part of the rights of a worker to a safe environment. It would seem to me that some of those many thousands of workers who are sexually harassed in the workplace would prefer the preventative rather than the curative approach. I put that on the government's agenda for another time to perhaps have a look at that work being done by the Young Workers Legal Service.

With that, I indicate that the Greens will be supporting this bill, which I note has actually now been under the auspices of many ministers. A lot of the formative work was done under the former minister the Hon. Paul Holloway, it was introduced into this place some five or six months ago by the former minister the Hon. Bernard Finnigan, has had carriage by the member for Elder (Hon. Patrick Conlon), and currently is re-presented before us by minister Wortley. It has hardly fallen out of the sky overnight. It has hardly come before us without some long period of consultation, of negotiation, of bargaining, of people giving up certain things to get other things.

Certainly, no-one can claim that we have not known that this was coming for some many months, if not many years. There is a great body of work to support the harmonised laws. As I say, a national system in terms of work health and safety can only benefit workers, and one would imagine it would benefit employers as well. With that, the Greens will support the second reading of this bill and look forward to the amendments to be debated in committee. Under all of those ministers, I want to thank Jess Nitschke for being a stable voice and consulting with the Greens all the way through the various ministers and over the various months.

The Hon. R.I. LUCAS (17:11): I move:

That the debate be now adjourned.

The council divided on the motion:

AYES (11)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES (10)
Finnigan, B.V. Franks, T.A. Gago, G.E.
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Vincent, K.L. Wortley, R.P. (teller)
Zollo, C.

Majority of 1 for the ayes.

Motion thus carried.

The PRESIDENT: Order! The honourable minister, adjourned debate for?

The Hon. R.P. WORTLEY: On motion.

The Hon. R.I. LUCAS: I move:

That the motion be amended to leave out 'on motion' and insert 'Tuesday 14 February 2012'.

The PRESIDENT: The question is that the words 'on motion' stand part of the motion.

The council divided on the question:

AYES (10)
Finnigan, B.V. Franks, T.A. Gago, G.E.
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Vincent, K.L. Wortley, R.P. (teller)
Zollo, C.
NOES (11)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.

Majority of 1 for the noes.

Question thus negatived.

The Hon. T.A. FRANKS: Can I move to amend the motion to the next day of sitting?

The PRESIDENT: I think the motion has been put and the amendment moved by the Hon. Mr Lucas has been successful.

The Hon. T.A. FRANKS: I want to clarify whether members realise they just deferred it to next year.

The PRESIDENT: You can vote against the question. I have to put the question. The question now is that the matter be adjourned until 14 February 2012.

The council divided on the question:

AYES (11)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES (10)
Finnigan, B.V. Franks, T.A. Gago, G.E.
Gazzola, J.M. Hunter, I.K. Kandelaars, G.A.
Parnell, M. Vincent, K.L. Wortley, R.P. (teller)
Zollo, C.

Majority of 1 for the ayes.

Question thus carried; debate adjourned.


At 17:27 the council adjourned until Wednesday 30 November 2011 at 10:00.


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