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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-04-03 Daily Xml
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WORK HEALTH AND SAFETY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 March 2012.)

The Hon. G.A. KANDELAARS (17:18): I rise to speak on the second reading of the Work Health and Safety Bill 2011. While the Minister for Industrial Relations (Hon. Russell Wortley) will be providing a comprehensive response to questions asked by various honourable members in this chamber, I wish to address specific issues in the bill that I believe are of particular importance.

There has been a certain hysteria which some members have attempted to attach to this bill. Before addressing specific elements of this hysteria, I would like to stress to members that the introduction of the bill will not significantly change current South Australian occupational health, safety and welfare laws. I hope that businesses are not only already aware of their current legal obligations but are also complying with them, in which case they will be familiar with the substantial provisions of this bill.

The bill will reduce red tape for business. This bill will contribute to the national harmonisation of work health and safety laws, which will benefit our economy by reducing the number of regulations and codes of practice that apply across Australia creating a greater level of certainty and reducing costs to individual businesses. A uniform approach to the interpretation and enforcement of work health and safety laws has been agreed to by all states after comprehensive consultation with businesses, unions and the greater community.

Implementation of this bill will mean that South Australian businesses will be able to operate across state and territory borders, and they will be subject to the same laws in each jurisdiction. As an example, whilst I was a director of Telstra Super, I can recall that one of Telstra Super's subsidiaries, Telstra Super Financial Planning, which has four officers across Australia (one in Adelaide and also one in its national office in Melbourne, one in Sydney and one in Brisbane), had some issues in relation to complying with changes that occurred in South Australia, particularly the issue of responsible officer. It was only due to the fact that I made the board aware that Telstra Super Financial Planning then reassessed its position. But it is a position which many businesses find themselves in, where they are forced to look at their businesses in each state to work out whether they are complying with that state's occupational health and safety laws. This bill addresses that situation.

Most importantly, the bill will improve safety in South Australian workplaces by making workplace safety everybody's responsibility to the extent to which individuals can influence safety. This bill will also contribute to ensuring the same rights, entitlements and protections across Australia for workers, regardless of where they work and regardless of their contractual arrangements. Therefore, employees of labour hire firms, contractors and people who volunteer for businesses will have a right to safety. Workers who operate across borders will also benefit from having their qualifications and training recognised wherever they go. Union rights of entry will provide another set of eyes to ensure safety in South Australian workplaces.

This is only a short summary of the benefits of this bill. I will leave it to the minister who is responsible for this bill to elaborate on why its passage is so important for the future of South Australia, its economy and the safety of South Australians. Instead, I will focus on a short list of issues of particular interest to me.

First, I would like to address questions about how this bill will change regulations regarding fall prevention and, in particular, whether there will be additional costs to businesses. The requirements under this bill and associated regulations are consistent with those under the current South Australian Occupational Health, Safety and Welfare Act 1986 and the Occupational Health, Safety and Welfare Regulations 2010.

Chapter 6 of the Work Health and Safety Regulations, Construction Work, requires a safe work method statement for any high-risk construction work, which includes work which involves the risk of a person falling more than two metres and for work to proceed in accordance with this statement. This will ensure that specific controls are implemented to manage risks associated with work. Businesses will find that they will use a few standard safe work method statements as these will accommodate most jobs.

The situation will generally require only a quick review for any site-specific issues, such as a sloping site. Safe Work Australia has released three codes of practice to assist businesses in managing the risk of falls and implementing these regulations. Controls that may be suitable range from scaffolding through to guardrailing, edge protection, catch platforms or trestles.

Many of these can be constructed by workers or business operators themselves and can be shared across trades providing safe and easy access to work areas that support efficient completion of the tasks. Work scheduling and planning can also assist generally such as in the construction of trusses or floor sheeting.

The Work Health and Safety Bill and accompanying regulations provide workplaces with flexibility when it comes to controlling the risks of falling. The proposed legislation takes a risk-based approach to the requirements expected of employers and recognises that different levels of risk require different control measures. In some situations a ladder may be an acceptable measure, while in another case a higher level control may be required. This would be an expected approach regardless of whether the work concerned the installation of a hot water service, painting, repairing a television antenna, installation of a roof vent, servicing water-cooled air conditioning or pruning a tree. The type of control used will depend on what is reasonably applicable in the circumstances.

Neither the model work health and safety regulations nor the current occupational health, safety and welfare regulations prescribe any height threshold for the provision of physical fall protection measures. Safe Work Australia has released codes of practice to further assist industry to manage the risk of falls. None of these prescribe any height threshold for the provision of fall protection measures. Control measures are required to be implemented if the risk of a fall would result in an injury, but the type of controls selected are dependant upon the reasonable practicable circumstances under this consideration.

Secondly, I am sure members will agree, the people who volunteer their time and make valuable contributions to the community should be subject to less protection of their health and safety than paid employees. Under this bill a volunteer association with employees is considered to be conducting a business or undertaking and, therefore, has a duty to ensure that anybody at that workplace or affected by their activities is not put at risk. This is no different to current South Australian legislation where the employer must ensure as far as reasonably practicable that a person is safe from injury or risk to their health.

Also, under the bill, volunteers engaged by a person conducting a business or undertaking have a duty to take reasonable care of themselves and others. This is no different to what is currently required in South Australia. Frankly, I believe it is common sense that everybody in the workplace has rights and responsibilities for health and safety, and this bill recognises this. The bill also recognises that purely volunteer organisations are different and it clarifies for the first time that a volunteer association which does not have a paid employee will not be captured by workplace safety regulations. Although, I must say, they still have an obligation under common law for safety.

Both Volunteering SA and NT (through CEO, Evelyn O'Loughlin) and Volunteering Australia (through CEO, Cary Pedicini) have strongly endorsed the Work Health and Safety legislation, noting that it enhances the protection of volunteers.

Mr Pedicini recently wrote to reaffirm his commitment to the proposed law. He stated that media coverage and other misinformation have created unnecessary fear and apprehension amongst volunteers and volunteer-involving organisations. He further writes that the harmonisation of work health and safety laws increases the protection afforded to Australian volunteers and brings with it the need for organisations and volunteers to be aware of their responsibility to work safely. To have volunteers protected in the same way as employees is a positive outcome for volunteers.

A strength of the Work Health and Safety Bill as it relates to volunteer organisations is the removal of the provision that requires the appointment of responsible officers. The responsible officer provision led to uncertainty for many volunteer organisations. This was because the duty to appoint a responsible officer was related to the corporate status of volunteer associations and whether it could be considered to be carrying on a business for legal purposes.

The Work Health and Safety Bill provides greater certainty for volunteer associations about work health and safety duties that apply. In addition to removing provisions that have been confusing for many volunteer organisations, the Work Health and Safety Bill provides strong legal protections for individual volunteers.

Unlike the current legislation, which contains grey areas regarding the issue of who is responsible for safety in a workplace, this bill is clear: if a person conducting a business or an undertaking (which is referred to as a PCBU) is able to influence the safety outcomes of people at a workplace, then they have a duty to do what is reasonably practicable to ensure other people's health and safety.

If the PCBU has no control over the work activity, then it is not reasonably practicable for it to ensure the safety of people. The PCBU is only accountable for the things that it is reasonably practicable for it to control. This is simply common sense, but enshrining this responsibility in work health and safety will ensure that employers who do the wrong thing by not providing a healthy and safe workplace will be held responsible.

The concept of PCBUs has proven workable and uncontroversial in Queensland and the Australian Capital Territory for a number of years. Occupational health and safety laws in most other jurisdictions contain extended definitions of 'employer' and 'employee' to capture a broad range of work relationships in a manner similar to the PCBU concept.

The Work Health and Safety Bill builds on existing legislation by moving beyond the traditional employer/employee relationship. The concept of a person conducting or undertaking a business (a PCBU) will improve clarity for people involved in contract work. A PCBU will have to ensure as far as is reasonably practicable the health and safety of workers that it engages, directs or influences. Therefore, this bill will reduce ambiguity about the responsibility of subcontractors and principal contractors, creating an expectation that ensuring safe work practices is everybody's business. This will not have an impact on businesses that already take appropriate care to ensure the safety of people on worksites.

The bill recognises that modern working arrangements provide that the health and safety of all people in workplaces will be protected, regardless of whether they are a contractor, a labour hire worker, a work experience student or a volunteer. The penalties contained in the bill reflect the recommendations of the national review which recommended that the penalties in the model act should have a strong deterrent factor.

For example, a category 1 offence—an offence that exposes an individual to the risk of death or serious injury or illness, that is engaged in without reasonable excuse—is on par with a serious breach in general criminal law. I must say here that the test of this is actually the same as criminal law—that is, the test is 'beyond reasonable doubt', and that is a significant test indeed. The three levels of penalty allow for a differentiation of culpability and risk. They also allow sufficient room for the sentencing court to adjust the penalty within each category to suit the particular circumstances of the offence.

I would also like to address the right of entry of union representatives for work health and safety reasons under this bill. Union representatives in South Australia already have an ability to enter workplaces to consult with workers for industrial relations purposes. Union right of entry for the purpose of work health and safety is in place in all other states and, in some cases, this has been the case for many years.

Under the bill, a union official who has undergone prescribed training and has been issued with a permit from the Industrial Relations Commission of South Australia may enter a workplace to inquire about a suspected contravention, inspect employee records, and consult with and advise workers in relation to work health and safety. Misuse of the entry provisions, such as a contravention of a permit holder's permit conditions or improper behaviour, will result in the revocation of the work health and safety entry permit and a potential penalty of up to $10,000.

Apart from the many unions that support the greater protections within the proposed laws, many employer representatives have also been very supportive of the legislation. Some specific groups which have endorsed the legislation and which have recognised the importance of enhanced worker safety include the Australian Industry Group (both the South Australian and federal branches) and the Roofing Tile Association of Australia.

In fact, Ms Heather Ridout, the recently retired chief executive of the Australian Industry Group (which is the peak industry association in Australia representing the interests of more than 60,000 businesses from a number of different sectors) had, prior to her retirement, written to all parliamentarians to strongly endorse the new law. In her letter she states that:

...the process of formulating the bill has brought with it a level of cooperation between state and territory regulators that is unprecedented and will be immensely important to the effective administration and practice of workplace safety.

Furthermore, she states that:

[...the harmonisation laws], framed strongly and fairly with an underlying consistent enforcement protocol are eminently preferable to the current situation, not only for those companies that operate to trade across jurisdictional boundaries, or in a national supply chain or market, but for any company.

Mr Tony Tanner, the Executive Director of the Roofing Tile Association of Australia, has also expressed strong support for the harmonised laws and has emphatically dismissed and rejected the fearmongering and deceptive tactics utilised by the HIA. Finally, the SafeWork SA Advisory Committee, chaired by Tom Phillips AM, with senior representatives from business groups and unions, also supports the Work Health and Safety Bill, and has stated that the bill is critical to modernise work health and safety laws and to support the efforts to introduce a nationally consistent system of workplace health and safety laws, regulations and codes of practice, across Australia.

Finally, I remind members that this legislation is already in operation in five jurisdictions: the commonwealth, the Australian Capital Territory, New South Wales, Queensland and the Northern Territory, and it will also become operational in Tasmania on 1 January 2013. In conclusion, I reiterate to the chamber that many of the substantial provisions of the bill are already in place in South Australia. The bill will ensure that it is clear that workplace safety is everybody's responsibility, as it should be. I commend the bill to this chamber.

Debate adjourned on motion of Hon. J.M. Gazzola.

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