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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-06 Daily Xml
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WORK HEALTH AND SAFETY BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 June 2012.)

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (15:23): I thank all honourable members for their comprehensive contributions to the debate on the Work Health and Safety Bill. This is a historic moment in the development of occupational health and safety legislation in this country. This bill affords a unique opportunity to deliver a legal framework for 21st century Australian workplaces that will benefit all workers and business in both South Australia and the nation as a whole.

Far from representing a national takeover of occupational health and safety, as the Hon. Mr Lucas would have us believe, this bill represents a mature approach to federalism and is the accumulation of years of effort, collaboration and cooperation by workers and their representatives, business and industries and their representatives, and governments to create nationally consistent occupational health and safety laws in Australia.

The evolution of this bill stemmed from a recognition that in a country the size of Australia it simply does not make sense to have nine sets of separate legislation covering workers' safety. There is compelling logic to the concept of national health and safety legislation. Business and industry groups, who were the initial drivers of the national harmonisation process, recognise this, as do workers and government.

The bill puts into effect this government's commitment to provide the highest level of protection to workers in this state so that no-one has to feel angry about losing a loved one at work and so that workers and their families and their employer or the business that engaged them do not have to deal with a work-related injury, illness or even death. This commitment has been mirrored by all states and territories and the commonwealth, all of whom support the fundamental principles and the core model provisions in this bill.

The legislation has been passed in New South Wales, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory and the commonwealth. I confirm that the situation in Tasmania has been resolved since the Hon. Mr Lucas' speech, which suggested that the ultimate position of the Tasmanian parliament is still up in the air in terms of what will or will not occur. Tasmania is not up in the air. The Tasmanian House of Assembly has agreed to the 1 January 2013 start date for its Work Health and Safety Bill, the provisions of which are completely consistent with the bill before us today.

There has been a lot of fearmongering about the effects of these laws. I want to assure honourable members that these fears are misguided and, sadly, often based on misinformation from lobby groups with a particular self-interest in seeing this legislation defeated. The bill before us today provides the same progressive standards of safety to all workers and businesses in Australia. It has been subject to extensive consultation, which has involved all Australian governments, key local and national business groups and unions, the SafeWork SA Advisory Committee and all other individuals and groups interested in ensuring the health and safety of workers.

It is a testament to the commitment of all those involved that we have reached this pivotal moment in the history of work health and safety in Australia. As elected members of parliament, we should not let down all those people who have worked so hard for so long to deliver this major reform. Let us make no mistake about this. Workers in this country deserve the same standards of safety wherever they work. Businesses have a right to expect that they will operate in the same work health and safety legal framework, irrespective of their location. Not only are these fundamental principles and rights that should not be denied, but they also make economic and practical sense.

Many issues and questions were raised during the second reading contributions. I provide the following responses as a prelude to the more detailed explanation of the merits of the legislation. The Hon. Ann Bressington and the Hon. Kelly Vincent raised the issue of asbestos and in particular asked for the government to state its intentions in relation to mandatory air monitoring. The government understands the importance of air monitoring during the removal of asbestos, and it paid close attention to the advice from the Asbestos Advisory Committee.

The government will continue to require mandatory air monitoring in the first 12 months of the operation of the Work Health and Safety Bill. During this time, SafeWork SA and the government will seek to secure the support of interstate jurisdictions to also move to mandatory air monitoring. Should this not be successful, the government will continue to require air monitoring as a licence condition for non-friable asbestos removalists. The capacity to require this as a licensing condition is provided for in the Work Health and Safety Regulations 2012.

The Hon. Ann Bressington also asked about the extension of the notification period for the removal of asbestos. I confirm on the record, as was requested, that, in relation to the notification period for the removal of asbestos, where special circumstances arise, such as the unforeseen presence of asbestos or other unexpected events, immediate notice can be given. But as we would expect, SafeWork SA will not authorise asbestos removal to proceed if the removal process put workers and others at risk. These matters, of course, relate to the regulations under the bill, but I want to assure this council that the regulations relating to asbestos are better and stronger than those that currently exist.

The Hon. Kelly Vincent asked about training and education programs under the new legislation and the impact of the laws on some home renovators. Let me assure the honourable member that workplaces, employers and workers will have access to the best information available and will be supported by the transition to a new legal framework.

SafeWork SA will be delivering an extensive program of engagement to inform and educate the South Australian community on the Work Health and Safety Bill. The program will provide a variety of information sources to meet the needs of business and workers. This will include information sessions that will be available to the public, as well as information sessions that will be targeted at specific injuries and groups, including volunteers, licence holders, asbestos removalists and group-training organisations. In addition, bulletins and other material will be distributed to businesses and individuals to provide support and guidance on the new legislation. The work health and safety website will also continue to be maintained and updated throughout the transition period to provide ongoing access to relevant information on work health and safety laws, including fact sheets, frequently asked questions, comparison tables and presentation material.

I take this opportunity to also point out that this legislation is supported by a significant number of codes of practice. Contrary to the unfounded fears expressed by members of the opposition, the very purpose of the codes of practice is to provide practical guidance to workplaces on how to comply with a legal duty. Far from being an additional regulatory burden, they are a support tool. This goes to the heart of the honourable member's question about how will workplaces be assisted in the managing of safety obligations. The regulations prescribe what needs to be done to ensure safety and the codes provide guidance on how to do it.

The Hon. Ms Kelly Vincent also asked: 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? The answer is no. An individual conducting home renovations would not qualify as a person conducting a business or undertaking and therefore would not come within the scope of the Work Health and Safety Bill.

To clarify: where a private individual engages the service of a contractor it is a customer to business relationship and not a PCBU to worker relationship. In that instance the contractor is a person conducting a business or undertaking in their own right and would be responsible for their own health and safety under the Work Health and Safety Bill. In short, let me be very clear about this: I understand the honourable member's concerns about the potential implications of this legislation for residents and homeowners. This legislation does not apply to homeowners whose residences are used for domestic purposes.

The Hon. Tammy Franks asked for clarification about the financial assistance that South Australia will receive for implementing COAG reforms. The Hon. Rob Lucas has raised questions about the impact of not passing the bill on commonwealth funding to South Australia. The intergovernmental agreement signed by the Council of Australian Governments provides that South Australia will receive $33 million under the national partnership agreement to achieve a seamless national economy.

The national harmonisation of work health and safety laws has been identified as one of the ten priority items in developing a seamless national economy. It will be for the commonwealth government to consider what level of payment can be provided to South Australia if the government does not meet its commitment to harmonising occupational health and safety laws.

Let me also say—in response to the Hon. Rob Lucas's attempts to come up with some sort of pro rata amount that is at risk if South Australia does not pass this legislation—there is no formula which apportions part of the COAG payment to the delivery of specific reforms. It is not a case that national harmonisation of work health and safety legislation can be isolated as a defined fraction of the total partnership payment.

The agreement in the IGA is that COAG measures will be delivered. It will be a matter for the commonwealth to determine if the IGA has been honoured and in doing so the commonwealth has discretion in relation to the total amount that will be withheld from South Australia if specific reforms are not delivered.

I now turn to the other questions put and issues raised by the Hon. Rob Lucas, which reflect, in large part, the criticism and misinformation that has been circulating around the bill in recent months. Much of this is based on a fundamental misrepresentation of the intention and application of the legislation before you. I take this opportunity to give members the facts and dispel the misinformation and inaccuracies.

For years, business groups across Australia have been crying out for consistency and clarity on occupational health and safety laws. That is what this legislation provides: clarity and certainty for all parties in a workplace about their duties and responsibilities. If a person conducting a business or undertaking can influence the safety of people affected by the work of that business then they will have a duty to ensure that those people are not put at risk. The legislation recognises that there are limits to how this can be achieved and qualifies this duty with the term 'so far as reasonably practicable'.

Importantly, the concept of 'reasonably practicable' includes the extent to which a person is able to influence and control a safety outcome. I will discuss the issue of control in more detail later. Equally, workers and other people in a workplace will have a duty to take reasonable care for their own health and safety and the health and safety of others.

The key driver of the bill is improving worker safety. The bill seeks to recognise model working arrangements and provides that the health and safety of all people at a workplace, whether they be a contractor, a labour hire worker, a work experience student or a volunteer, will be protected. I am sure members will agree that all South Australians deserve the same standards of protection in the workplace: protection from the trauma and suffering of workplace injury should not be given to some workers and not others merely because of different legal working relationships.

The national harmonisation of work, health and safety laws has been also identified as an essential element in delivering a seamless national economy and reducing the regulatory burden on businesses that operate across the country. Despite what has been claimed by some sectors of the business community, the truth is that, rather increasing red tape, national harmonisation of work, health and safety laws will benefit the economy by reducing the number of regulations and codes of practice that will apply across Australia.

Harmonised laws will cut compliance costs, which will have a flow-on effect to many small and medium-sized businesses that deal with them. To illustrate this point I will demonstrate how much paperwork a current multi-state business operating across all jurisdictions needs to deal with to meet its occupational, health and safety regulations. Next to me here is what currently applies throughout the country and the nine jurisdictions, including legislation, regulations and codes of practice.

It will stand probably over a metre high when put on top of each other. I also have with me what will occur under the new work, health and safety acts, regulations and codes of practice. There may be a couple of codes of practice, for instance, for mining, that are not here as they are a work in progress, but members can see the significant reduction in red tape and compliance laws for which business for so long has been crying out to achieve. Red tape will be reduced and there is the proof.

The Hon. Rob Lucas has suggested in this chamber that the driver of this reform is not improved worker health and safety and that it is purely economic. This is outrageous. He and the Hon. Dennis Hood have asked why, if current statistics indicate improvement in workplace safety, we need to do anything. It is true that the state's safety record has improved greatly over the last few years and, yes, we are on track to meet our target of a 40 per cent reduction in injury claims across the 10 years to 2012, as agreed under the National Occupational Health and Safety Strategy 2002 to 2012.

Honourable members are suggesting that we say, 'Oh, well, we are now on track; why bother going and doing something different or something else? It does not matter if these things could improve things even more; we are already on track.' Members may be aware that on 13 March this year two reports were published entitled 'Work-related traumatic injury fatalities, Australia 2009-10' and 'The cost of work-related injury and illness for Australian employers, workers and the community, 2008-09'. These reports indicate that, despite Australia's recording its lowest number of work-related deaths since 2003-04 (that is 216 deaths as opposed to 272), the total cost of work-related injury, illness and disease can now be assessed at more than $60 billion, as opposed to $34.3 billion in 2000 and 2001.

The reports show that progress is being made nationally in reducing the deaths of workers, but for this government—and I am sure for all of you—one death is one too many. We must continue to strive for a zero injury rate, and this bill will continue to assist the government in this goal. This bill supports the continuous evolution of responses to workplace death and injury, an evolution that will assist all of us to continue our good progress in this area and to achieve our ultimate goal of zero workplace injuries.

I think we are in danger of losing sight in this debate of the importance of what we are actually talking about here. Any death or injury to a worker who is merely carrying out his or her job to make a living is completely unacceptable, and where improvements can be made these should not be thwarted by vested interests, illogical opposition or targeted amendments designed to avoid responsibility for protecting workers from injury or death.

On the topic of statistics, I can provide the following clarification about the change to the statistics in the WorkCover annual reports raised by the Hon. Rob Lucas. As the chamber will be aware, WorkCover is outside my portfolio areas. Nevertheless, as worker safety is an important aspect of the industrial relations portfolio, I requested that this matter be followed up by WorkCover.

I am advised that these figures are based on the financial year in which the injury is incurred. These numbers include an estimate provided to WorkCover by the scheme's actuaries for claims incurred but not yet reported. Some claims result from slow onset diseases that may take several years to manifest themselves. Such claims may be reported long after the injury year. The variance between the count of claims incurred in 2009-10 and 2010-11 as reported in the WorkCover SA annual reports appeared because of variances in the estimates of incurred but not reported claims as at 30 June 2010 and 30 June 2011.

The Hon. Rob Lucas asked what improvements the bill will actually make, and I say to this chamber today that there are many. The most important issue in complying with legal duties is, fundamentally, our understanding of what the legal duty is. Like no other related legislation before it, the Work Health and Safety Bill spells out clearly all duties and responsibilities. It provides absolute certainty as to who is responsible for health and safety and the duties they hold. It explains what is meant by 'reasonably practicable'. It sets out the duties of officers and explains due diligence. While these obligations are embedded in existing legislation, they are hidden and ambiguous. The Work Health and Safety Bill provides clarity and certainty. This is fundamental if workplaces are to be able to comply with their legal duties.

Beyond establishing a superior legal framework, this legislation introduces concepts that are progressive and far-reaching. It extends the application of safety protection by introducing measures to allow worker representatives to advise on safety matters. It introduces new compliance measures as an alternative to prosecution. It defines and clarifies the powers of inspectors and provides significant review provisions, both internally and externally, for an inspector's decision.

Further to those benefits that I have outlined, I would also like to highlight a significant improvement for everyone in this bill. Both workers and businesses are given mutual recognition of licences and qualifications such as high-risk work, licences and authorisations. If a person has a piece of plant, say, an amusement device, then they only have to register this in one state and they can use it in other states without the extra cost of registering it in every state. Without harmonisation, the device has to be registered in each state, which is cumbersome and costly, in particular, for those on the Royal Show circuit.

Within this context, I have been advised by SafeWork SA that concerns have recently been raised in the Northern Territory about the fact that operators from those states (including South Australia) which have not passed the model laws cannot have their relevant licence and authorisation automatically recognised in jurisdictions like the Northern Territory, which has passed the laws. This is an untenable situation where South Australian workers and businesses will be seriously disadvantaged. Furthermore, the inconsistent treatment of licensing arrangements is creating unnecessary red tape in one of the key areas where the model laws are set to provide a reduction in red tape.

In addition, the bill provides South Australia with an opportunity to have more people attending work sites to address safety concerns with the introduction of the work health and safety entry permit system. There are thousands of workplaces in South Australia, so the more people addressing safety risks the better. The opposition to this right of entry system is purely illogical. If a workplace is doing the right thing to protect workers, there is nothing to fear from these new provisions.

On the issue of harmonisation, the Hon. Rob Lucas stated that the target for harmonisation is unachievable and will not happen, irrespective of what we do in this chamber. He states it will not happen. Mr Lucas is wrong and I strongly refute his statements. The central pillars of the legislation have not been changed anywhere.

All states and territories support the fundamental principles that people who conduct a business or undertake a work activity need to, as far as reasonably practicable, ensure that workers and other people at the workplace are not harmed by that activity. All states and territories support the rights of workers to be involved in determining their safety at work. There has been no departure from these elements anywhere. These are cornerstones of legislation and we must ensure that all South Australian workers are afforded the same standards of protection that apply in other parts of the country.

New South Wales added provisions to the model legislation which introduced a union right to prosecute. This is over and above the model act but, critically, New South Wales did not depart from the fundamentals of this important legislation. Western Australia signalled from the outset its opposition to the level of penalties and, much to the detriment of Western Australian workers, the Western Australian government does not support the right of health and safety representatives to stop work in an unsafe situation. However, beyond that, Western Australia has participated in every stage of the development of national legislation and continues to be active in the implementation projects.

Contrary to what the Hon. Dennis Hood suggested in his remarks in this chamber, Queensland, the Australian Capital Territory, the Northern Territory and the commonwealth have all adopted the national model laws unchanged. Since the election of the new state government in Queensland, there have been no moves to wind back this legislation in that state. Suggestions that this is to happen are ill-informed or speculative.

Again, all the key provisions of the South Australian bill can be found in the Queensland, Tasmanian, ACT, Northern Territory and commonwealth acts. It is true that Victoria undertook a state-specific registry impact statement on the model work health and safety regulations, and I will have more to say on that at a later time. However, given that the model act drew heavily on the Victorian legislation, and the Victorian drafters played a leading role in drafting the model act, there is good reason to believe that Victoria will adopt the model laws.

The Hon. Rob Lucas is suggesting that, because the legislation does not match word for word across every jurisdiction, the harmonisation process has somewhat been defeated. That is just not true. Bear in mind that the model act allowed for jurisdictions to include references to local acts and that it required jurisdictions to drop the fundamental framework into local legal systems and local consultation arrangements.

For example, the South Australian bill provides for the establishment of the SafeWork SA advisory committee. This is specific to South Australia but does not mean that the bill is not harmonised. The enactment of this legislation in those jurisdictions I mentioned so far has gone a substantial way to improving the consisting and the coverage of worker safety across Australia. To say, 'Oh well, even if we defeat it here or it is okay because other states amended the model law' is an absolute furphy and cop-out.

However, before I leave this point, let me pick up further on the issue of harmonisation and the notion that it is not happening. This is a sample test but one which completely crushed Mr Lucas's scaremongering about legislative differences. I refer you to part 11, clause 216(1) of the draft South Australian Work Health and Safety Bill. I have selected this clause because (a) it is a substantial way into the legislation; and (b) because it is a matter that employer organisations have been calling on for many years.

This provision is about providing workplaces with an opportunity to address safety shortcomings and to deal with situations of noncompliance with the laws without the need for expensive litigation. This provision is known as 'enforceable undertakings' and I will read clause 216(1) for the chamber as follows:

The regulator may accept a written undertaking, (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this act.

I read now from the Queensland legislation which, as you know, is now enacted. Part 11, clause 216(1) states:

The regulator may accept the written undertaking, (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this act.

As you will notice, it is exactly the same. I refer you to the New South Wales legislation, part 11, clause 216(1) which states:

The regulator may accept the written undertaking, (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this act.

Exactly the same again. I refer you to the same clause in the ACT and the same clause in the Northern Territory. Have a look at the same clause in Tasmania and they are all the same. They are word for word exactly the same—the legislation is harmonised. On this point, keep in mind that, should this bill be defeated, so too will employers' access to enforceable undertaking as an alternative to costly litigation.

As a follow-on from this, we must ask the question: what if South Australia fails to support national health and safety legislation? This is much more than a question about COAG payments. If members of this chamber fail to support the national legislation, South Australian workplaces will operate on outdated and antiquated laws. Make no mistake: the Occupational Health, Safety and Welfare Act has served South Australia well for close to 30 years.

There have been a lot of changes in how workplaces and working relationships operate over the last 30 years. Work health and safety laws need to continue to evolve to recognise these changes. For example, if we do not modernise our laws now, the scope of legal workplace safety protections will continue to be limited by the employer/employee relationship and existing ambiguities will remain. Honourable members need to understand that if the bill is not passed, a South Australia worker will have lower standards of safety than other workers in other states and territories across Australia.

This will especially be the case in areas of asbestos, where South Australia will not have properly qualified asbestos assessors nor competencies or training for workers dealing with asbestos; construction, where there will be no defined safety management practices, for example, the requirement for Safe Work Method Statements for high-risk construction work and where there will be ill-defined contractual obligations which effectively transfer responsibilities from principal contractors to subcontractors; licensing, where there will be no portability of skills and qualifications due to mutual recognition of licensing. This is particularly important in industries such as mining and to businesses large and small and subcontractors.

Other states and territories that have modernised their work health and safety legislation will derive productivity benefits that will flow down to improved employment and economic growth. South Australia will be left behind and this will contribute to the perception that South Australia is a backwater. There will be an inability in South Australia, if we do not pass the bill, to benchmark performance against consistent national standards. There will be inconsistent compliance and enforcement processes and a loss of important compliance tools such as enforceable undertakings, which I highlighted earlier.

The Hon. Rob Lucas also raised the issue of a state-based regulatory impact statement. Undertaking a state-based regulatory impact statement was not essential. The national Regulatory Impact Statement presented a reasonable basis on which to consider the impact of the model legislation for South Australia. It should be noted that as part of the preparation of the national Regulatory Impact Statement, Deloitte Access Economics came to South Australia and met with employer organisations and unions to discuss their views on the impact of the model regulations. The national Regulatory Impact Statement concluded that the qualitative assessment of individual aspects of the model act indicates a net benefit to single state businesses.

I can inform the chamber today that a South Australian specific regulatory impact study for the model work health and safety regulation was commissioned. The report, prepared by Deloitte Access Economics, is a supplement to the national Regulatory Impact Statement on the regulations. It indicates that the safety benefits of harmonisation would exceed the compliance costs and the long-term return to the South Australian economy would significantly exceed the one-off cost of implementing the new laws, even without taking into account the expected productivity benefits of the reforms. I table a copy of the report, which is of course publicly available on the SafeWork SA website.

It is instructive at this point to make reference to the Victorian Regulatory Impact Statement. Members are well aware, as I have made reference to this earlier, that the Victorian government has undertaken a supplementary regulatory impact statement. A summary of the statement was released on 12 April, and I repeat—a summary of the report. The full details of the Regulatory Impact Statement have not been released and, as such, it is difficult to make any reasoned assessment of the findings of the review.

Having said that, out of the summary did raise a number of matters that I would like to bring to the attention of this house. In particular, the Victorian Premier indicated that the most onerous changes included removing the two-metre high threshold for falls, the broader scope of plant and extended definition of a worker. Let me touch briefly on these matters, noting that in the absence of a detailed report it is difficult to comment on the accuracy of the Victorian RIS with any precision.

In relation to the removal of the two-metre high threshold, this refers to the removal of a height limit that is currently within the Victorian regulations. I can advise that there is no such limit in the South Australian regulations and, as such, this specific issue has no application in South Australia. The projected cost implications are irrelevant to the South Australian context and are irrelevant to the state and, in fact, I commend the South Australian risk-based approach—which has been picked up in the model Work Health and Safety Regulations—to the Victorian Premier.

There has been no height threshold in South Australian legislation for more than a quarter of a century, and the compliance has not been unnecessarily burdensome on South Australian workplaces. As for the broader scope of plant, I can advise that the definition of plant in the work health and safety legislation is exactly the same as the definition that is currently used in Victoria.

The definition has been broadened only with respect to the registration divisions within the plant chapter of the regulations; specifically for the operation of these parts plant includes a structure. The intention of this change is to ensure that devices such as amusement structures and lifts are adequately covered as plant. This is entirely consistent with South Australian legislation and will present no issues for South Australia.

With regard to the Victorian concerns about the extended definition of a worker, I must confess that I am somewhat bewildered by this. The work health and safety legislation provides an explanation about when a person is defined as a worker. This adds greater clarity and certainty to the concept and, in that sense, is very helpful. Surely the Victorians cannot be expressing concern about affording safety protections to apprentices, trainees or outworkers. Hopefully, they are not questioning or attempting to deny protection to volunteers.

It would, as I have said many times, be an outrageous proposition to afford volunteers a lower standard of protection when they are working side by side with paid workers. Again, on the face of it, I am afraid that this matter would appear to have no consequence in South Australia. I will now turn to the issue that has received significant attention in the debate—the impact of work health and safety regulations on the construction industry.

A number of members have raised the issue of increased red tape in this industry resulting in an increase in the cost of building a domestic dwelling. In relation to those claims let me say the following: for many years the South Australian Housing Industry Association has been running the line that, first, the national construction standard and now the work health and safety legislation will increase the cost of building houses in South Australia by some $15,000 to $30,000 per home.

These claims are simply sensationalist and inaccurate. While these figures are quoted by the HIA and now by the Hon. Rob Lucas as fact, there are no other reports to substantiate these claims. It is for this reason that I have had to use equally strong language to dispel such information. The position taken by the South Australian HIA is unfortunate and the use of this misinformation is jeopardising the safety of workers in South Australia.

The achievement of national uniformity in occupational health and safety legislation in South Australia has been consistently supported and recommended by the SafeWork SA Advisory Committee as an important economic and legislative reform. It is the role of government to show leadership and bring these reforms about. This is what the community expects of its elected members of parliament.

Irrespective of the parochial debates about the measures of saving to be enjoyed by multistate companies versus single-state companies, large versus small businesses, or by South Australia versus other states, it is an economic truth that macroeconomic reforms are designed to have a trickle-down effect whereby growth in one sector stimulates growth in another, and that growth in a larger business stimulates growth in smaller businesses that service or supply the larger business. The housing sector benefits from growth in the Australian economy as a whole. Here are the figures supplied by the HIA. I seek leave to insert these figures.

The PRESIDENT: Are they statistical?

The Hon. R.P. WORTLEY: Yes, Mr President.

Leave granted.

HIA OHS Subcommittee

SINGLE STOREY TRUSSED ROOF DWELLING

Sage Issue Particulars 'Additional' Cost of Compliance National OHS Standard
SITE PREPARATION
Site Fence 30 weeks based on $11p/metre $1,000
All weather access 1 metre perimeter gravel $750
Re-gravel access point $250
Chemical toilets $800
Rubbish removal Skip (2 large 8 cubic metre) 1 extra $350
Labourer to clean site $350
Bobcat (1 extra scrape required) $300
Induction Supervisor training $30
Audit Site assessment $150
Site management Maintaining fence/access $1,000
DELIVERY
Traffic Management Licence and training $800
Labourer to direct traffic $400
PLUMBING
Sewer Drain Shore up trench >1.5m estimated 4L/m $200
CEILINGS
Scaffold Scaffold hire and expected add labour $1,000
ROOF
Truss Erection Crane (driver & rigger) $500
Edge protection carpenter $1,200
Fixing truss apex (mobile scaffold) $300
Tiles / Sheet Roof
Safety rails $650
Purlin spacing >900mm $300
Sheet roofing – extra labourer 1 day $200
Solar HWS erect Cherry picker & crane $750
Gable Construct and paint gable on scaffold $700
INTERNAL
Air conditioning or Genie lift $200
evaporative cooler Cherry picker & crane $750
BRICKWORK
Laying Heavy Work – 5 plank scaffold
L x H $4.50/sqm no labour
80L/m one lift 1.5 x 80m x $4.50/m $540
Second lift for Gables
12L/m x 4.5m + labour @ $25sqm $1,350
EXTERNAL
Render gables Scaffold L x H M2 inc Labour $25m2 $600
MISCELLANEOUS
Light Work 2 Plank Scaffold 3.6m high per week $120
all trades
TOTAL $15,540


TWO STOREY TRUSSED ROOF DWELLING

Stage Issue Particulars 'Additional' Cost of Compliance National OHS Standard
SITE PREPARATION
Site Fence 45 weeks based on $11p/metre $1,500
Orange fence Fall protection site cuts $100
All weather access 1 metre perimeter gravel $750
Re-gravel access point $750
Chemical toilets 45 week hire $1,200
Rubbish removal Skip (3 large 8 cubic metre) 1 extra $350
Labourer to clean site $450
Bobcat (1 extra scrape required) $300
Induction Supervisor training $30
Audit Site assessment $150
Site management Maintaining fence/access $1,500
DELIVERY
Traffic Management
Licence and training $800
Labourer to direct traffic $500
Additional delivery materials $400
PLUMBING
Sewer Drain Shore material > 1.5m estim 4L/m $200
FRAMING
1st Floor Erection scaffold/additional labour $1,000
Edge protection to install floor sheets $1,200
Stairwell protection/access
'Ladder lock system' $800
Crane hire to lift sheets $400
CEILINGS
Scaffold Scaffold hire and expected add labour $1,000
ROOF
Raise edge protection E/protection for roof/fascia & gutter $1,200
Truss Erection Long reach Crane (driver & rigger) $1,300
Fixing truss apex (mobile scaffold) $300
Tiles / Sheet Roof
Edge protection $650
Purlin spacing >900mm $300
Sheet roofing – 2 extra labourers 1 day $400
Solar HWS erect Cherry picker & crane $750
Gable Construct and paint gable on scaffold extra lift $700
INTERNAL
Air conditioning or Genie lift $200
evaporative cooler Cherry picker & crane $750
BRICKWORK
No extra
EXT CLEANING
No extra
EXTERNAL WALLS
Light Weight Scaffold for erection $650
EXT BALCONY
Balcony Floor Edge protection $300
Scaffold to tile edge $500
MISCELLANEOUS
Light Work-all trades 2 Plank Scaffold 3.6m high per week $120
EXTRA
Labour Hire Extra required for fitting internal fixtures $1,000
TOTAL $22,600


The Hon. R.P. WORTLEY: Let me describe some of the items listed in the $15,540 figure described by the HIA as additional costs of compliance. They include: $1,000 of gravel for paths, $1,050 for rubbish removal, $1,000 to maintain fences on top of the ostensible $1,000 to erect a site fence, and $1,200 for someone to direct traffic on site. To be quite frank, these items are ludicrous; they are not mandatory under the Work Health and Safety Bill or current occupational health and safety laws.

Other costs include multiple entries for fall protection. For example, there is $1,000 for a ceiling fixer to erect a scaffold, $2,000 for a roofer to install edge protection, $950 for a roof tiler to erect safety rails, $750 for a solar hot water service installer to hire a cherry picker, and $950 for an air-conditioning contractor to hire a crane. I could go on, but it is clear that what they have done here is replicate the figures for the same risk controls for each and every separate trade on site. This is ludicrous and suggests on-site inefficiencies in the planning and management of the work to the utmost limit.

What is even more alarming in this message from the HIA is that it suggests that its members are currently not complying with their current occupational health and safety obligations. It is suggesting that HIA members currently have no costs for providing safety measures to prevent workers from being injured from falls. This is despite the fact that the current regulations clearly prescribe a risk management approach to deal with fall protection and effective controls to prevent workers being injured by falling from heights in all industries, including the housing industry.

In citing fall prevention costs as new costs, the HIA is ignoring its members' current occupational health and safety obligations or grossly overstating the costs for safety measures that must be in place right now. The HIA also regularly quotes a report it commissioned in 2009 from Hudson Howells, arguing that it substantiates these extraordinary housing cost increases. The Hudson Howell report states:

It is stressed that this report is a desktop assessment identifying the cost impact of the National Occupational Health and Safety Commission standard on key economic factors and that no primary consultation has been undertaken. Additionally, no detailed economic modelling was undertaken and the assessment does not take into account potential economic benefits associated with the recognition of the proposed standards. The findings are therefore preliminary estimates based on a range of assumptions, estimated costs provided by the HIA subcommittee and publicly-available data.

This report clearly does not stand up to scrutiny, as it uses as one of its central assumptions the figures provided by the HIA that I have just discussed. The HIA commissioned a report to consider the impact of laws on housing and construction, and the Housing Industry Association provides all the assumptions against which that consideration is to be made. The report also states that the figures include the effects of other regulatory changes unrelated to the national construction standard or work health and safety laws. This is a totally flawed assessment and must be dismissed. The outcomes of a report commissioned by a lobby group driven by self-interest should not be used as the lever to block safety outcomes across Australian industry generally.

To examine these claims by the HIA, in 2009 SafeWork SA commissioned an independent cost of the national construction standard on which the work health and safety construction regulations are based. This was undertaken over a period from November 2009 to January 2010 by Mr Bryan Bottomley and Associates. To ensure a South Australian industry context was achieved, particularly regarding public housing impacts, Mr Bottomley's costings advice was then reviewed by Mr Paul Ogden, former director of capital projects with Housing SA until his retirement in July 2006.

In summary, Mr Bottomley concluded that the total cost impact on South Australia is estimated to be no more than 0.5 per cent of project value per annum and that the adoption of the standard was unlikely to have major impacts on construction costs and related housing affordability levels in South Australia. He also advised that the overall cost estimates provided by the HIA were inconsistent with estimates from other published sources and with costs incurred by volume builders in other jurisdictions.

The HIA costing appeared to assume zero compliance with current South Australian occupational health and safety laws. I table the reports of Mr Bottomley and Mr Ogden in this chamber so that this important clarification can be put on the record. I direct members to these documents as a more robust source of cost and benefit data than those one-off industry reports. I also note that the HIA has revised its estimates only very recently, and the costs claimed are up to $25,000 for a single-storey dwelling.

SafeWork SA is assessing the latest estimates and will provide advice to me shortly. At first glance, however, it appears that the HIA is operating under the same flawed principles as before. The point is that, irrespective of the dollar amounts, the HIA costings are based on incorrect assumptions. The entire framework is wrong. I will be interested to see SafeWork SA's assessment of the veracity of these revised figures. Beyond the false and misleading statements in relation to costs, I turn now to the key issue of safe work practices.

The housing industry, as noted in the Hon. Dennis Hood's address to this chamber, states that there have been only three workplace incidents on housing sites in the last five years that have required some form of hospitalisation. I ask all honourable members: what reasonable person could possibly believe that, in a high-risk work activity such as construction, there could be less than one incident per year over a five-year period? This is a fantasy, because the overall statistics of the industry are not so glowing.

Analysis of the WorkCover data shows that housing construction represents almost 10 per cent of the construction industry yet, in the four years to 2011, this sector had 923 injury compensation claims, 34,000 working days lost to injury and $10.5 million in workers compensation payouts. A breakdown of the data on injury claims caused by falls also reveals 84 falls, 5,100 working days lost and $1.5 million in workers compensation payouts. We are talking about nearly 51 days off per injury on average. That is a serious fall. Each one of those falls could have just as well been a death.

In fact, in the jurisdictions that have already had these construction divisions in their work health and safety legislation for a number of years, figures from the Safe Work Australia workers compensation claims database show that there has been a decrease in the incidence rates of serious compensated claims. In 2006-07, there were 22.1 claims per 1,000 employees. By 2009-10, this had decreased to 19.7 claims.

The HIA's position on an injury-free workplace is simply not supported by injury or fatality statistics, nor by the result of the SafeWork SA audits. Despite the fact that trends for the industry are improving—and I commend the housing, commercial and civil sectors for achieving this—these figures support the continued need for improvement and for legislative requirements to manage safety in the sector.

The WorkCover annual report 2010-11 and the WorkCover statistical review 2008-09 indicate that the construction industry accounts for a disproportionate number of fatalities and injuries as compared to the numbers employed in the sector. The construction industry in South Australia accounted for 22 per cent of compensatable fatalities over the period July 2006 to June 2011. In 2008-09, 2,334 claims represented 8.2 per cent of claims, despite only representing 6.5 per cent of remuneration. This is a proxy for numbers employed.

An amount of $50 million in claims payments in 2008-09 represented 10.5 per cent of claims costs, again despite only representing 6.5 per cent of remuneration. It is evident that this sector incurs a disproportionate level of death and injury. The system offered by the work health and safety regulations, where everyone who can influence safety has a role to play; namely, planning for safe design, consultation, coordination, site safety management plans and safe work practices, is an essential approach to reducing risk in the sector.

Safety assessments undertaken by SafeWork SA during the period 10 October to 28 October 2011 indicate continuing issues with the housing sector and its management of the risk of falls. Of the 122 worksite inspections involving 87 different building companies, 35 per cent were found to be non-compliant in instituting measures to manage risk of falling. The other major issue identified in the safety assessment concerned electrical safety, with 43 per cent of companies identified as non-compliant, particularly with those aspects of legislation requiring electrical equipment to be regularly tested and tagged.

I turn now to the issue of scaffolding. The Hon. Rob Lucas raised questions put to me by the Hon. John Darley in a radio interview with Leon Byner on 1 February 2012. I can advise the Hon. Rob Lucas that I have already written to the Hon. John Darley with responses to his queries, but I will restate those for the record. The central question was whether tradespeople undertaking tasks such as installing insulation, solar panels or a satellite dish on a roof, re-tiling a roof or cleaning gutters would be required to bear an additional cost for scaffolding for the work they undertake at heights.

As I indicated in my response to the Hon. John Darley, the short answer is no. The Work Health and Safety Bill and regulations provide workplaces with flexibility when it comes to controlling the risk of falling. Scaffolding is simply not required for all tasks. The selection of the control is dependent upon the specific job and the risk. The legislation takes a risk-based approach to the requirements expected of employers and recognises that different levels of risk require different control measures.

Not every task carried out whilst working at a height will require the erection of scaffolding. However, quite rightly, the work health and safety legislation mirrors current legal requirements and requires the risk of falling to be controlled so far as reasonably practicable. Let me repeat that: the requirement to control the risk of injuries arising from falls is entirely consistent with the current legal duty. This is, has been and always will be a feature of South Australian law. There are a number of effective controls to choose from in doing so and a choice is dependent upon the risk and what is reasonably practicable.

Controls that may be suitable range from scaffolding through to guard railing, edge protection, catch platforms or trestles or safety harnesses. Importantly, many of the prevention controls can be implemented by the workers and business operators themselves and can be shared across trades, providing safe and easy access to work areas that support efficient completion of tasks. For example, current industry practice for the installation of solar panels and satellite dishes includes a lanyard system which can be utilised at each site. Work scheduling and planning can also assist greatly, such as the construction of trusses.

For one-off jobs, as the honourable member has inquired about, the selection of the control is dependent upon what is reasonably practicable. This involves taking into account matters such as the likelihood of an injury, the resulting degree of harm, ways available to eliminate risk and, lastly, cost; that is, whether the cost is grossly disproportionate to the risk.

The work health and safety regulations outline controls to be considered, such as the use of prevention devices—for example, a secure fence, edge protection, working platform, covers—or a work-positioning system—for example, a harness attached to an anchor system that does not enable you to reach the edge—or a full arrest system—for example, a harness that if you fell would arrest your descent to the ground—or a combination of the above. Administrative controls, such as training and procedures, can be used to supplement physical controls. Light tasks may also be safely undertaken from a ladder or trestle.

Safe Work Australia has released three codes of practice to further assist the industry manage the risk of falls. These provide a number of examples of types of work that can use any of the above controls. The Hon. Rob Lucas has suggested that I am wrong in saying that controls for fall prevention will not change. I reiterate to this chamber, however, that fall prevention requirements, including the provision of scaffolding, under the Work, Health and Safety Bill and regulations are entirely consistent of those under the current Occupational Health, Safety and Welfare Act 1986 and the Occupational Health, Safety and Welfare Act Regulations 2010.

To demonstrate this I will directly compare regulations 78 and 79 of the Model Work Health and Safety Regulations with regulation 76 of the Occupational Health, Safety and Welfare Act Regulations. Regulation 78 of the Model Work Health and Safety Regulations requires that a person conducting a business or undertaking manage the risk of a fall that is likely to cause injury. The regulations then describe a hierarchy of controls to be considered, starting with finding a way to work from the ground or from a solid construction. This would eliminate the risk—problem solved. If this is not reasonably practical, regulation 79 outlines other controls to be considered, such as fall prevention, a work-positioning system, a fall-arrest system, or a combination of the above. Administrative controls, such as training and procedures, can be used to supplement these controls.

So, let us compare these requirements with those of the current Occupation Health, Safety and Welfare Act Regulations. Regulation 76 requires that the risk of a fall that is likely to cause injury to a person be eliminated through providing reasonable protection against a fall, such as secure fences, covers or other forms of safeguarding. This does not describe a height threshold but addresses falls at any height. If this is not reasonably practical, regulation 76 requires that a safe system of work be provided that involves a safe working platform, safety harness or pole safety belt, a fall arrest device, training, supervision, assistance by other persons, or a combination of the above.

These requirements are entirely compatible. Decisions about what controls are required stem from consideration of what is reasonably practical and relate to the likelihood, degree of harm, availability and the cost of the control. None of the Model Work Health and Safety Regulations, nor the Occupational Health, Safety and Welfare Act Regulations prescribe any height threshold for the provision of fall protection. Controls are required if there is a risk of a fall that will result in injury, and the selection of the control is dependent on what is reasonably practical.

While safe work method statements are required for high-risk construction (work over two metres), these can be based on templates and simply be updated for site or job-specific hazards. As I noted before, Safe Work Australia has also released three codes of practice to further assist industry manage the risk of falls. None of these prescribe any height threshold for the provision of fall protection. So, this is another piece of misinformation being used to block this bill. That any work at any height requires scaffolding is simply not true. I state again that control measures are selected according to what is reasonably practical, according to the risk. I say again that there is no difference to the current situation.

Much comment has been made about the concept of a person conducting a business or undertaking, and I will make a few key points about this. First, I turn to the comments by the Hon. Rob Lucas regarding the person conducting a business or undertaking. The honourable member suggests that this is a completely new concept in work safety legislation, and quoted at length advice provided by Mr Dick Whitington, QC. What Mr Lucas and his learned adviser failed to grasp is that the concept of a person conducting a business or undertaking was discussed at length through the national reviews of work health and safety laws in Australia, and was it recommended for inclusion in the model laws as it was considered to be a fundamental element of addressing work practice in the 21st century.

Mr Lucas might want to tie this state to the outdated practices of the 1970s, where the employer/employee relationships were the norm, or, to put it another way, the master/servant relationship. However, this is no longer the case. The world of work is built on myriad working arrangements, spanning contractors, subcontractors, labour hires, franchises, itinerant and casual workers. These arrangements are not well suited to a legal structure built on employer/employee relationships. While the opposition may feel more comfortable with laws aligned to the old master/servant relationship, this government is prepared to implement legislation that is both modern and progressive.

The fact that our current occupational health and safety laws are built around the employer/employee relationship means that there is continuous ambiguity about the obligations and protections for those not working in this traditional arrangement. This bill breaks through the ambiguity of the past by bringing clarity and certainty to the duties owed by any person whose work activities may expose people to the risk of being injured.

The concept of a 'person conducting a business or undertaking' will improve clarity for people involved in contract work. The bill recognises model working arrangements and provides that the health and safety of all people in the workplace will be protected, regardless of whether they are a contractor, a labour hire worker, a work experience student or a volunteer. A person conducting a business or an undertaking will have a duty to ensure, so far as reasonably practicable, the health and safety of workers whom they engage, influence or direct.

Contrary to Mr Lucas's claims, a 'person conducting a business or undertaking' concept has proved to be workable and uncontroversial in Queensland (you only have to look at sections 9 and 10 of that state's Workplace Health and Safety Act 1995) and the Australian Capital Territory (see sections 9, 21, 27 and 28 of that territory's Work Health and Safety Act) for a number of years. Further, occupational health and safety laws in most other jurisdictions contain extended definitions of 'employer' and 'employee' to capture a much broader range of work relationships in a manner similar to a 'person conducting a business or undertaking' concept. This brings me to the issue of control. I will read for the record the comments of the Hon  Rob Lucas, which I wish to address. He said:

The essential argument in relation to this, in lay person's terms...is that under the existing act there is a notion of control. If you control something you can be prosecuted for it.

The main argument is that, under the new bill, that control element or test has disappeared completely. That is, there might be events that you do not control and you still might be prosecuted and held responsible for that...In essence, what [Dick Whitington] is saying is that there is a provision in the existing bill—section 4(2)—which is an issue in relation to control; that is, you are responsible for and prosecuted for issues over which you have control.

The national review of the occupational health and safety laws, conducted by a committee of experts in 2008, recommended that no control test should be included in the model work health and safety legislation. An important consideration in deciding not to include a control test was that a definition can encourage a focus on avoidance of control rather than on practical compliance measures taken to meet the relevant duty. The review has suggested that a test of control is counterproductive as the focus should be on ensuring active compliance.

The bill before you ensures that everyone has responsibility for health and safety in the workplace and everyone who conducts a business or undertaking has a duty to ensure, so far as reasonably practicable, the health and safety of workers. Contrary to the view of those who suggest that without a control test the issue of control is absent from the work health and safety legislation, I confirm that the issue of control is built into the legislation.

The Work Health and Safety Bill is very clear that, if a person conducting a business or undertaking is able to exercise, influence or control the safety outcomes of people at the workplace, then they have a duty to those people. If a person conducting a business or undertaking has no control or influence over the work activity, then it is not reasonably practicable for them to ensure the safety of those people. The person conducting the business or undertaking is only accountable for those things that it is reasonably practicable for them to influence and control.

The crux of the matter is that no-one who can influence a safety outcome can avoid their duty by claiming it was someone else's responsibility. This is surely how it should be. However, the duty is always couched in what is reasonably practicable, and what is reasonable practicable in any matter will depend on the level of influence or control a person has. Clause 16(3)(b) explicitly states that where more than one person shares the same duty a person must discharge their duty to the extent to which they have the capacity to influence and control the matter. This requires persons to carry out their duties only to the extent that they have control.

There is no doubt in my mind that control is very much embedded into the legislation. This view is supported by expert legal opinion across the country. Notwithstanding my decision in this matter, I have, as always, indicated my willingness to listen to the views of others and be open to constructive suggestions. I understand that there are members of the business community who are concerned about how the legislation may be interpreted.

Following extensive consultation with business leaders and legislative experts, I have agreed to move a government amendment to insert a new provision into the bill which will clarify the references to control. The proposed new provision at clause 17(2) mirrors the wording of clause 16 of the bill but provides a certainty to business operators that they cannot be held responsible for matters over which they have no control.

I understand that this has been a sticking point for many groups, and I am happy to say that that sticking point has now been removed and that key business groups in this state now support the bill. On this point let me say that, while I have been prepared to accommodate the issue, it does not compromise the integrity of the nationally harmonised legislation. The central pillars of this bill, the fundamental principles of the harmonised laws, are unchanged.

It will come as no surprise to some members in this house that despite this major concession on my behalf there still remain elements amongst the business and employer communities who continue to oppose the legislation. They demanded inclusion of the provision on control and, when they got it, they now say it is not enough. Let me be clear about this: if a person conducting a business or undertaking is continuing to argue that the inclusion of a reference to control in the form of a proposed government amendment is unacceptable, then they are clearly signalling that they do not want any responsibility for safety, and this is an outrageous and shameful proposition.

Let me turn to the examples given by the Hon. Rob Lucas in his second reading speech on this point of control—firstly, Mrs Jones who owns a rental property and pays a management company to manage the property for her. One of the great advantages of this legislation is that it brings certainty to those who hold a legal duty of what that duty is. If Mrs Jones is a landlord of one or more properties, she has a duty to ensure that persons who undertake work at the property are not put at risk from any hazards that may be present in the property. Mrs Jones does not have a work health and safety duty to tenants because this is a domestic dwelling.

Mrs Jones' duty is only owed to those she engages to do work at the property but, importantly, this duty is qualified by what is reasonably practicable. In other words, if she engages a plumber, she needs to alert the plumber to anything that might cause the plumber harm, but she has no duty in relation to the conduct of the plumbing work itself. If, as in the example the Hon. Rob Lucas raises, Mrs Jones engages a managing agent, the agent has responsibility as the PCBU with management and control of the workplace. This will further limit Mrs Jones' duty, as it will be the responsibility of the agent to alert the plumber to any specific risk related to the property. None of this is different from Mrs Jones' responsibilities under the current laws.

The Hon. Rob Lucas also gave the example of farmers Dave and John, with Dave as a self-employed farmer who sometimes engages John, his mate who is also a farmer on an adjoining property, to help him with spraying his crops. He noted that under the Work Health and Safety Bill both Dave and John, as persons conducting a business or undertaking, will have a duty to ensure so far as reasonably practicable that John's health and safety are not put at risk while he is working for Dave.

Dave will owe a duty to John because he is a worker and, arguably, John will owe a duty to himself because he is a person conducting a business or undertaking and a worker. These obligations apply regardless of whether Dave is supervising or controlling John's work and regardless of the fact that John is not Dave's employee. It is important for the Hon. Rob Lucas to note that the health and safety obligations arising from his scenario are no different under the existing occupational health and safety act.

Dave would be deemed to be John's employer under that act and would hold the primary duty of care to ensure the health and safety of all employees. This duty is not changed under the Work Health and Safety Bill. The current occ health and safety act clearly states that a contractor—in this case, John—and any person employed by the contractor is taken to be employed by the principal. In this case, the principal would be Dave, who is deemed to be the employer.

The employer's duties apply to matters to the extent that the employer has control over them. Therefore, under existing law, Dave would owe John a duty. Under the proposed bill, he would also owe John a duty but only so far as is reasonably practicable. This encompasses consideration of the control able to be exercised by Dave. Under the existing occ health and safety act, John would also owe himself a duty as a worker, so nothing here changes either. It is simply scaremongering to suggest that drastic changes are being made. There is in fact no change to this duty.

Finally on this matter, and to ensure that there is no doubt about the application of these principles in the Work Health and Safety Bill, I consider the responsibility of a director of a company. While there are many possible scenarios, I refer to the question of liability. I raise the question: is it likely that a director of, say, a construction company would be liable for, or held responsible for, the specific work of, say, an electrician? Clearly, electrical work is a specialised activity undertaken by a qualified person. The director of the company could hardly be expected to be responsible for the conduct of electrical work.

It is not reasonably practicable for the director to ensure the safety of a person undertaking the work of a qualified electrician. This will obviously depend on the circumstances, but the central point is that a person's duty is categorically and unambiguously qualified by what is reasonably practicable. The director can only be held accountable for those matters over which the director has influence and control. That is the DNA of this legislation.

I turn now to a matter that has been grossly misrepresented in the debate, and that is how the Work Health and Safety Bill deals with volunteers. I will emphasise again that only volunteer organisations that employ workers will have duty of care obligations under this bill. Volunteer associations that are operated exclusively by volunteers do not come within the definition of a person conducting a business or undertaking under the bill and, therefore, will have no duty of care responsibilities.

This actually clarifies and improves the situation greatly from the current laws. The current law requires volunteer organisations—even those that are 100 per cent run by volunteers—where they are incorporated and carrying on a business to appoint a responsible officer to train in occ health and safety laws. Volunteer associations have been asking for years to be released from this obligation, and this obligation is removed by this legislation.

Comments from the opposition in particular are downgrading the work of volunteers. The Hon. Mr Lucas has distributed for consultation amendments that will mean that, if a person volunteers at a business or undertaking where there are paid workers, there will only be a responsibility to protect the paid workers. There will be no responsibility to ensure the health and safety of volunteers. This is an absolutely ludicrous outcome. Effectively, what the opposition would have us do in this state is say that the life of a volunteer is worth less than the life of a paid worker.

These amendments would relieve business—including significant businesses like Anglicare, the Salvation Army and the Red Cross—of any responsibility for looking after the health and safety of their volunteers. This is an outrageous affront to the good people of the state who give up their time for the benefit of others. This legislation is about affording those people the protections they deserve and has been welcomed by volunteer associations. I do not doubt that there has been confusion about this issue. However, much of the confusion has been stirred up by those who would seek to defeat the bill for their own purposes.

It is important to note that extensive work has been undertaken with the volunteer sector to ensure that volunteers and those who manage volunteers are aware of their obligations. My commonwealth colleague the Hon. Bill Shorten has held roundtable discussions with a number of organisations and, as a result, a volunteer assistance package has been developed by Safe Work Australia in partnership with Volunteering Australia. The package includes a volunteer assistance line, email and web page designed to provide guidance and support for volunteers and volunteer organisations that may be affected by the bill.

I further note that Volunteering Australia and Volunteering SA&NT are supportive of the bill and have expressed so publicly on a number of occasions. The CEO of Volunteering Australia, Cary Pedicini, stated that the recent media coverage has created unnecessary fear and apprehension amongst volunteers and volunteer-involving organisations. VA is concerned that this is creating uncertainty amongst current volunteers and will discourage future volunteering.

Evelyn O'Loughlin, CEO of Volunteering SA&NT, stated that the negatives come in where organisations have not understood what their obligations are right now. They already have obligations under the current laws; bringing attention to them now is a positive thing so that people can ask, 'What am I meant to be doing? Why have I not been doing it before?' I table a media release from Volunteering SA&NT indicating its support for the bill.

The bill is designed to approve worker safety and, in the area of volunteers, this means continuing to give them the protection of law. This is a protection they deserve and something that the people of SA quite rightly expect. The Hon. Rob Lucas has consistently referred to the comments from the President of the Law Society, Mr Ralph Bonig, and his view that volunteers are not covered by the current occupational health and safety laws. He asked whether I had received legal advice on this matter. Well, I have and, as I have said before, Mr Bonig may be President of the Law Society but on this particular piece of law he has it totally wrong.

Advice was sought from the Crown Solicitor's Office in relation to the coverage of volunteers under the Occupational Health, Safety and Welfare Act and, by comparison, under the Work Health and Safety Bill 2011. The essential questions asked and answers received from that advice are as follows.

Question: can you confirm that under the Occupational Health, Safety and Welfare Act volunteers who do unpaid work in connection with the trade or business of an employer are deemed to be employees and are therefore covered by the Occupational Health, Safety and Welfare Act?

Answer: yes, by reason of the wording of section 4(2).

Question: can you confirm that under the Work Health and Safety Bill volunteer associations only have duties if they employ a worker?

Answer: yes, by reason of the combined effect of clauses 4, 5(7), 5(8) and 7.

Question: can you confirm that volunteers will only be brought into the scope of the Work Health and Safety Bill if they do unpaid work for a business or undertaking that employs a worker?

Answer: yes, by reason of the combined effect of clauses 4, 5(7), 5(8) and 7.

Question: can you provide a view on whether the practical outcome of the provisions of the bill are effectively the same as the Occupational Health, Safety and Welfare Act—that is, that a volunteer will only come within the scope of each legislative framework if they do unpaid work at a business that employs a worker?

Answer: under the Occupational Health, Safety and Welfare Act a volunteer may also be deemed to be an employee of an employer and, in that case, will owe duties under section 21. However, this will only be the case where the organisation already employs a person or engages a contractor to perform work in connection with the organisation's trade or business and the volunteer performs work for the organisation in connection with the organisation's trade and commerce.

The effect of clauses 5(7) and 5(8) of the bill is that a volunteer association would only be a person conducting a business or undertaking where the association already employs a person to carry out work for it, as the relevant duties imposed under the bill are only by a person conducting a business or undertaking or by workers, which includes volunteers carrying out work in any capacity for a person conducting a business or undertaking. Then the combined effect is generally the same under the current act in respect of the health and safety duties—that is, the duties in clauses 19 and 20 of the bill, the equivalent in the Occupational Health, Safety and Welfare Act being sections 19 and 25.

Question: can you confirm that the practical outcome is the same, i.e. that once brought within the scope of each legislative framework, a volunteer owes the same duties under the Work Health and Safety Bill as arose under the Occupational Health, Safety and Welfare Act?

Answer: provided that a volunteer comes within the scope of the bill, the volunteer will owe similar duties as under the Occupational Health, Safety and Welfare Act. Those duties are essentially to take reasonable care for their own and other's health and safety in the workplace, and to follow reasonable directions of a person in charge of a workplace in relation to health and safety.

Question: can you confirm that a volunteer can only be liable under the Work Health and Safety Bill for a breach in the circumstances as discussed above?

Answer: in so far as the health and safety duties established under clauses 19 and 29 are concerned, a volunteer will not have committed an offence in connection with a failure to comply with such duties, except the duties in clauses 28 and 29. However, volunteers may commit offences in connection with compliance and enforcement—for example, hindering an inspector, which is clause 188.

Question: can you confirm that a volunteer cannot be prosecuted for a breach of officer duties under the Work Health and Safety Act?

Answer: clause 27 of the bill imposes a duty on officers to use due diligence to ensure that a person conducting a business or undertaking complies with its health and safety duties. Clause 34 provides that volunteers do not commit an offence for a failure to fulfil this duty. Volunteers will only commit an offence if they fail to fulfil their duties in clauses 28 and 29.

In relation to the Hon. John Darley's comments about foster carers, I would like to clarify that a householder who is a foster parent is not a person conducting a business or undertaking. The organisation or agency that arranges and monitors the foster care would, however, be doing so as a person conducting a business or undertaking. This means that an organisation will have obligations to foster parents insofar as they can be affected by a person conducting a business or undertaking activities.

The Hon. Rob Lucas has mentioned that some business organisations do not support the bill. Firstly, I remind the chamber that this bill is a result of significant consultation between all states and territories, as well as employee associations and employer representatives. Major businesses and trade union groups throughout Australia have voiced support for the harmonised legislation.

In particular, the Australian Industry Group and the Australian Chamber of Commerce and Industry are strong advocates for harmonised laws. These two peak bodies together represent the interests of over 410,000 businesses and employ more than five million people nationwide. Other supportive employer representatives include the Business Council of Australia, the Australian Institute of Company Directors, and the Roofing Tile Association of Australia.

I table the letters of support for the bill, including a letter of support received as late as yesterday, 5 September, from: Business SA, the International Federation of Consulting Engineers, the Australian Chamber of Commerce and Industry, the Australian Industry Group, the Australian Warehouse Association, and the Australian Roofing Tile Association.

Much has been made of the Housing Industry Association voicing opposition to the bill, particularly its assertion that the bill will substantially increase the cost of constructing a new house. Members will no doubt find it interesting, however, that opposition from the Housing Industry Association is a relatively recent change in its position on the issue. In its Occupational Health and Safety in Residential Building Work policy the HIA states that, 'A nationally consistent framework should be established for OHS laws.' In its submission to Safe Work Australia on the exposure draft Safe Work Act 2009 the HIA states:

HIA supports national harmonisation of occupational health and safety (OHS) laws as a way of eliminating unnecessary barriers to businesses operating across jurisdictions. However HIA does not support harmonisation at any cost or to the detriment of existing practical safety solutions.

In this regard the, HIA has considered Model Act provisions and generally supports the moderate and reasonable balance of obligations and liability.

The provisions of the Model Act are a significant improvement to most current OHS legislation providing a fairer framework for balancing the responsibilities of all in the workplace.

I repeat: the national HIA considers that the bill before us provides a fairer framework for balancing the responsibilities of all in the workplace. It is also important to note that the national HIA is so committed to the work health and safety framework that it is working with its members to draft a code of practice specifically designed for the housing industry, providing further guidance on how to meet responsibilities under the new laws.

The Hon. Rob Lucas also mentioned the opposition, Master Builders Australia. The Master Builders Occupational Health and Safety Policy Blueprint 2009-15 states:

Master Builders supports the development of a nationally consistent regulatory framework that will reduce the complexity of the regulatory burden on businesses operating across jurisdictions...Master Builders also supports more consistency in the OH&S regulation that affects the building industry, provided that the content of the regulations and codes are appropriate and reasonable for employers.

Master Builders supports national hazard based standards supported by the national codes of practice, underpinned by guidance materials. We also support appropriate mandatory requirements for national introduction of OH&S training programs.

I believe this bill achieves everything that business and industry have been calling for. The most recent opposition to this bill is largely due to misunderstandings and misinformation, and I hope that the information I present here today can assist in remedying that.

The Hon. Mr Lucas also raised concerns about the provisions allowing union right of entry into workplaces under this bill. These fears of abuse of power and industrial leverage are unfounded. Union right of entry is about providing another set of eyes to improve safety. It is simply a further reference point to assist both workers and business to meet their safety obligations.

The bill will not give an open slather right of entry to workplaces. A union official will only be able to enter to inquire into a suspected contravention, to inspect employee records and to consult and advise workers in relation to work health and safety. Only appropriately trained union representatives can enter a worksite subject to specific conditions, and that right can and will be removed by the Industrial Relations Commission of South Australia if it is abused.

I would also like to emphasise that union entry permit holders will not have the power to stop work, conduct formal investigations or lay charges under the bill. Those duties remain with SafeWork SA's inspectors. There is no doubt that opposition to union right of entry is purely ideological. Union right of entry for occupational health and safety purposes has been in place in all other Australian states and territories for many years.

Union representatives in South Australia are already able to enter workplaces under the commonwealth Fair Work Act 2009 to consult with workers for industrial relations purposes. It is only logical to extend that right of entry to work health and safety matters, consistent with every other state and territory in the nation where, I might add, the sky has not fallen in.

The Work Health and Safety Bill requires codes of practice to be developed through a tripartite process, through consultation between government, unions and employer organisations and overseen by Safe Work Australia. This includes the engagement of the local SafeWork SA Advisory Committee. The process ensures that codes will meet the requirements of all relevant stakeholders. In addition, transitional arrangements under the Work Health and Safety Bill and the work health and safety regulations will allow duty holders time to make necessary adjustments to comply with any new requirement.

Safe Work Australia, in developing the work health and safety codes of practice, has access to a range of materials, such as:

codes of practice and guidance materials developed by various jurisdictions, all of which have utilised internal technical experts and have often been informed by external technical and industry personnel through working groups or formal public comment processes;

current and former national standards and codes of practice developed by Safe Work Australia. Safe Work Australia comprises members of occupational health and safety authorities and representatives of peak union and employer bodies. Such material is often being developed through technical working groups, involving industry representatives and always involving public comment;

other well established industry technical standards, such as those of Standards Australia. The standards development process utilised by Standards Australia involves the formation of committees comprising just such technical experts and industry representatives;

codes developed by industry stakeholders themselves, which are submitted to Safe Work Australia for consideration.

I am baffled by the request of some stakeholders to remove codes of practice altogether. Codes of practice do not impose additional obligations on duty holders, they merely provide practical guidance on how to meet standards of health, safety and welfare required under law. The fact of the matter is that the vast majority of codes have been in place in one or more jurisdictions for a number of years. They have been updated and improved, often at the request of businesses, to provide a better standard of guidance to workplaces.

The issue of penalties was also raised by the Hon. Dennis Hood. He suggested that a small business and the lives of those who run it may be ruined if they are gaoled or fined $3 million for even minor breaches. The honourable member refers here to a category 1 offence, which requires a person, without reasonable excuse, and being reckless to the risk, engaging in conduct that exposes an individual to a risk of death or serious injury or illness. This is in place, to deal with the most serious and reckless breaches of the legislation.

I note that the penalties in the bill reflect the recommendations of a national review which was undertaken by a panel of occupational health and safety experts and which preceded the drafting of the model work health and safety act. The national review recommended that the penalties in the model act should have a strong deterrent factor. The three levels of penalties allow for a differentiation that takes account of culpability and risk. They also allow sufficient room for a sentencing court to adjust the penalties within each category to suit the particular circumstances of the offence.

Before I go I would like to address some of the issues raised by the Hon. John Darley in his second reading contribution. The Hon. John Darley mentioned that the New South Wales government was the first state to introduce model legislation into its parliament. It is worth highlighting that in fact South Australia was the first state to introduce the model legislation into its parliament in May 2011. This is how long we have had to familiarise ourselves with the bill. This is how long workers and businesses have been waiting for these new laws. It is time for these new laws to progress.

The Hon. John Darley rightly pointed out that in order for the overriding principle of the bill to be achieved, that is, to afford workers and other persons the highest level of protection against harm to their health, safety and welfare, a single nationally consistent legislative regime makes sense. The Hon. Mr Darley quoted from a media release from the Premier of Victoria, Ted Baillieu, which discusses a PricewaterhouseCoopers assessment of the model regulations. I have already addressed that assessment earlier in my speech.

The Hon. Mr Darley gave a sound summary of the reasons for inclusion in the bill of the concept of a person conducting a business. In particular, he noted that the definition is intended to reflect the broad range of modern working relationships and business structures that exist, as well as to remove uncertainty about where health and safety duties lie, given the increasing range of non-traditional employer/employee arrangements.

He also highlighted that this government and SafeWork SA have undertaken considerable consultation in order to explain the intention of the legislation and to overcome and allay concerns expressed, particularly in relation to the notion of control. It seems to me that had the HIA and MBA spent more time working with us, as a government, and less time joining forces with those opposite to oppose the bill at all costs, they too would have reached the same level of understanding of the issues as the Hon. Mr Darley has.

I have said it before and I will say it again: importantly, any duty in the legislation is qualified by what is reasonably practicable. Control is a key test of what is reasonably practicable. If you do not have direct control over a health and safety matter then clearly it is not reasonably practicable for you to be able to do anything about it. This is a basic principle that has been tested in the courts. Notwithstanding this, some business groups felt that the issue regarding control required further clarity.

The government worked closely with business groups to alleviate their concerns and, as I have indicated before, it agreed to insert a clause stating that if a person does not have direct control of a particular risk to health and safety the extent to which a person must eliminate or minimise the risk depends on the extent to which the person has the capacity to influence the matter. This clarification was supported by numerous business groups, including Business SA and the Australian Industry Group.

All that this legislation requires is that anyone who has the capacity to influence a work health and safety outcome should use that influence to prevent injury or death in the workplace. I repeat: surely this is as it should be. Those business groups who still oppose this bill appear to be looking for a legal framework where their members can wash their hands of any health and safety responsibilities. Would this state want to support a notion that a person has no responsibility for safety, even though they have the capacity to influence the safety outcome? I do not think so!

In terms of right of entry, Mr Darley has raised some concerns and the question of consistency with the Fair Work Act 2009, and whether there should be a right of entry where there are eligible union members. It is important to note that the right of entry to consult with workers is consistent across both pieces of legislation, and this right is not limited by requiring the union membership of workers.

It is also important to remember that the reference in the provisions dealing with suspected contraventions to workers 'who are eligible' to be union members is consistent with the work health and safety laws that were replaced by the Work Health and Safety Act in New South Wales, Queensland and the ACT, and is also consistent with the current Victorian Occupational Health and Safety Act 2004, which of course Premier Baillieu is holding up as an even better model of how things should be done.

In terms of red tape, this bill in fact reduces the requirements for written risk assessments, which are now only mandated for certain work activities. The Hon. Mr Darley suggests that he will seek to insert a provision in the bill that requires a review of the legislation. It is important to note that the Council of Australian Governments has requested that there should be a national review of the legislation under the auspices of Safe Work Australia by December 2014. It would not make sense to duplicate the review process in South Australia.

I will briefly address some of the concerns raised by the Hon. John Darley in his second reading speech, particularly regarding the performance of SafeWork SA. It is important to remember that one of SafeWork SA's primary roles at any workplace is to ensure compliance with the occupational health and safety legislation. This is achieved by: engaging with the industry and visiting workplaces to provide advice and information, to carry out compliance and enforcement action in the form of verbal direction, statutory notices and, in cases of serious breaches, prosecution; reporting and investigating notifiable work-related injuries, dangerous occurrences and complaints; and undertaking unannounced inspections to ensure that the occupational health and safety management systems and site activities comply with relevant occupational health and safety legislation.

However, SafeWork SA is not responsible for the management of safety in the workplace. This responsibility rests with employers (PCBUs) and workers themselves. SafeWork SA has been actively involved at the Adelaide desalination plant since the beginning of the project in April 2009 and maintains engagement throughout the formal dialogue and site visits. In fact, since the project commenced almost 300 inspector visits have been undertaken, which has resulted in 83 compliance notices being issued.

SafeWork SA has ensured an occupational health and safety inspector presence at the site and regularly undertakes unannounced inspections. It has also had ongoing involvement with the desal plant through its investigation into the tragic death of Mr Brett Fritsch in July 2010. Charges have been laid in relation to that matter and it now rests with the Industrial Relations Court for determination.

I am also aware of SafeWork SA's other investigations relating to two other fatalities. In one situation the investigation concluded that there were no work-related factors that may have caused or contributed to the death, and the other fatality occurred on a public road away from the desal plant and was subsequently dealt with by SAPOL. In addition to all this, SafeWork SA has also worked closely with the desal plant parliamentary select committee, of which Mr Darley is a member, and has fully cooperated with that committee at all times.

This is a critical bill before us and, while I welcome the need for robust discussion, we should not prolong the debate as an obstructionist end in itself. I have consistently met with business groups and have consistently moved to allay fears and even to make amendments to the bill. The idea that this legislation is rushed is ludicrous, with the key legislative provisions finalised and publicly available for over two years. We as a Legislative Council are letting the workers and the majority of businesses in this state down badly if we continue to delay the progression of this important legislation.

The Work Health and Safety Bill represents a monumental and historic achievement in harmonising occupational health and safety laws across Australia. It represents the culmination of years of multilateral and tripartite engagement. The current bill has been endorsed nationally by the Workplace Relations Ministers' Council and Safe Work Australia.

We must not lose sight of the overriding key objective of improving work health and safety standards and particularly protecting working South Australians from death or injury. It is for these reasons that harmonised legislation has been passed in New South Wales, Queensland, the Australian Capital Territory, the commonwealth, the Northern Territory and Tasmania. It is for these reasons that it has support from governments, peak unions, national industry representatives—including the Australian Chamber of Commerce and the Australian Industry Group alike—and locally from Business SA, local unions and other industry groups.

It is for these reasons that I have been prepared to listen to local business groups, to reinsert the right to silence into the South Australian bill and to commit to a 1 January 2013 operation date, to ensure that the monumental work of the last five years does not go to waste and that we support the democratic processes that across the country have overwhelmingly voted for and supported the harmonisation of work health and safety laws.

The implementation of nationally harmonised work health and safety legislation is the final step on a long and challenging road. The bill represents South Australia's opportunity to improve the working lives of its citizens. It is an opportunity for South Australia to continue to be a part of a valuable history of continuous workplace reform, to provide 21st century work health and safety legislation and to improve people's working lives.

It provides the answers to the question industry and business have been asking for years: why can we not have consistent work safety laws across Australia? Most importantly, it is an opportunity to modernise and enhance legislation which protects our most precious resource: the rights of South Australia workers. I commend the bill to the house.

The council divided on the second reading:

AYES (11)
Darley, J.A. 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 (10)
Bressington, A. Brokenshire, R.L. 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 ayes.

Second reading thus carried.

Committee Stage

In committee.

Clause 1.

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

That progress be reported.

The committee 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.

Progress reported; committee to sit again.

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