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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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WORK HEALTH AND SAFETY BILL

Committee Stage

In committee.

(Continued from 18 September 2012.)

Clause 1.

The Hon. R.I. LUCAS: In terms of trying to assist the committee, I wonder whether the minister can outline the nature of the government's latest position. I noticed that the government amendments, as of yesterday, were still on file. In terms of processing the legislation through the committee stage, I wonder whether the minister can outline what his intentions are in relation to the amendments in his name that are still on file: whether or not he intends to withdraw them. If the minister can do that first, there are a number of other aspects which relate to what might be the government's most recent position, which I would like to raise with the minister on clause 1.

The Hon. R.P. WORTLEY: It is the government's intention to move only one amendment, and that is to clause 2, the commencement date.

The Hon. R.I. LUCAS: Can I clarify that the minister is indicating that he is withdrawing all other amendments standing in his name?

The Hon. R.P. WORTLEY: Yes.

The Hon. R.I. LUCAS: Can either the minister or perhaps the Hon. Mr Darley indicate at this stage the other aspects of the negotiated package between the government and the Hon. Mr Darley? There are issues that do not impact directly on the legislation but may well, as we understand it, relate to commitments to change regulations and/or codes of practices and, potentially, transitional arrangements.

It would assist the committee, I think, if the government can indicate its position because, Mr Chairman, as I think you and the minister would know, the minister's position up until now has been that this bill cannot be amended because it was part of harmonised legislation. Indeed, he told a number of industry groups that it was impossible to change the legislation in South Australia; he was not going to do so. They would have to take—and he would have to take—the issue back to the national level for meetings of ministers before there could be changes in the legislation. So it is clear from public announcements that the government has changed its position. Can the minister outline to the committee what the government's latest position is; that is, clearly the bill can be amended, at least from the minister's viewpoint, without harming the proposal for uniform harmonised legislation in all jurisdictions in Australia?

The Hon. R.P. WORTLEY: It has always been the government's position that, this being harmonised legislation, we prefer not to make any changes. However, as we know the dynamics of this chamber, we have been involved in a very prolonged round of negotiations and, as a result, we are supporting a number of changes to the legislation. We do not believe that this actually attacks the very pillars of this legislation and we will be supporting a clarifying amendment on the control to be moved by Mr Darley, some procedural amendments on the right of entry and a review of the legislation.

The Hon. R.I. LUCAS: The government will not then be accepting amendments in relation to self-incrimination, about which there has been much criticism?

The Hon. R.P. WORTLEY: Yes, we will be supporting the reintroduction of the right to silence.

The Hon. R.I. LUCAS: Has the government also announced any agreements in relation to changes in regulations or codes of practice as part of the negotiated deal?

The Hon. R.P. WORTLEY: The government has agreed to raise the height threshold from two metres to three metres.

The Hon. J.A. DARLEY: In answer to the Hon. Rob Lucas's questions, I have a number of questions that I will be raising with the minister at clause 2, which will probably clarify a number of those issues.

The Hon. R.I. LUCAS: I am happy to wait for clause 2 regarding those particular issues, but there are a number of other issues that could be raised in either clause 1 or clause 2. In relation to his last response, the minister said he would agree to increase something from two metres to three metres. Is the minister saying that the agreement he has entered into is generally or is it only in relation to high-risk industries?

The Hon. R.P. WORTLEY: That's right, yes.

The Hon. R.I. LUCAS: Is the minister indicating that there are no other proposed changes to regulations or codes of practice?

The Hon. R.P. WORTLEY: We agreed on an exemption for strata corporations, where premises are used solely for residential purposes, and addressed the issue of mixed-use premises. We have also agreed that, in the code of practice, instead of disallowance or cost-benefit analysis, parliamentary counsel will draft an amendment to provide for the Small Business Commissioner to be consulted on the effects on small businesses before new codes are declared and the safe work method statements to be pro forma, with provision for addendum.

I will detail in the debate that this will be the case, and have provided this to Mr Darley in advance. We have also agreed that the act will commence on 1 January 2013. The government will agree to an amendment which requires a review of the act to occur one year after the commencement date. We are also supporting the current amendments proposed by the Hon. Mr Darley regarding the right of entry, self-incrimination and the high risk construction code.

The Hon. R.I. LUCAS: The minister indicated that he was going to outline, during the committee stages, the government's proposal in relation to safe work method statements. Can he indicate if he is intending to do that under clause 1 or 2, or is there a particular clause where he is intending to raise that particular issue so that other members can be prepared for that particular debate?

The Hon. R.P. WORTLEY: Yes; we will be dealing with safe work method statements in clause 17.

The Hon. R.I. LUCAS: When we last debated this, on 18 September, I asked a series of questions in relation to the regulations. My question was:

Can [the minister] now repeat which aspects of the regulations are not intended to be proclaimed for 1 January 2013 but will be delayed, and for each of those, what is the particular date that the government intends for them to be proclaimed?

The minister replied:

Yes, there is a number of new provisions and responsibilities in the regulations. They will be phased in and they will be given 12 months. Three of them I have already mentioned, but there is a number, so what we will do is we will seek to get those regulations to you and let you know which ones they are.

I can indicate to the minister that in the month or so since that debate his office has not provided that information to me or, I suspect, to other members either. When will the minister provide that information so that before this bill passes through the committee stages members such as myself, who are interested in the answer to the question, will be properly informed about the government and the minister's position?

The Hon. R.P. WORTLEY: We will be detailing that in clause 2.

The Hon. R.I. LUCAS: I thank the minister for that but it will make that difficult, I think, for some members. I would imagine the committee stages will be unable to be completed in one session today so hopefully that will give members like myself, who are interested in what the minister is going to outline, the opportunity to have a look at that and then compare them with the national regulations, which are not immediately available. The minister also indicated, on 18 September, in response to the following question:

Can the minister take on notice or through his adviser indicate which particular section of the proposed regulations in South Australia are different in this respect to the national regulations?

So, a comparison of where the differences were between the proposed South Australian regulations and the national regulations. The minister's response was that he would take that on notice. Is the minister intending to provide that answer to members so that we can be properly informed before the conclusion of the committee stage of the debate?

The Hon. R.P. WORTLEY: I understand that discussion was in the context of asbestos; is that right?

The Hon. R.I. LUCAS: That is what the debate started on but then it extended beyond that to: what other differences are there between the South Australian regulations and the national regulations? The minister outlined there were some jurisdictional differences, together with asbestos and, we now hear, possibly in relation to high-risk industries as well. So, we are looking for all of the differences between the South Australian regulations and the model regulations as previously agreed.

The Hon. R.P. WORTLEY: The South Australian regulations are the model regulations, and there are some transitional regulations which we will be tabling, as we discussed, in clause 2.

The Hon. R.I. LUCAS: The question I put, and which the minister took on notice, was whether he would assist members of the committee by outlining where were the differences. The regulations are 500 or 600 pages. The request to the minister was whether he would provide, through his officers, the list of where are the changes in the South Australian regulations compared with the model regulations.

The Hon. R.P. WORTLEY: Predominantly, the changes are in regulation 2, the transitional regulations, and we will be tabling them in clause 2.

The Hon. R.I. LUCAS: Is the minister going to provide to the committee a list of the differences between the state regulations and the federal regulations? I know he will outline some in the clause 2 debate we are about to have, but will the minister provide, as he indicated on 18 September, a list of the differences in the state regulations to the federal regulations?

The Hon. R.P. WORTLEY: As I stated, the South Australian regulations are the model regulations. There will be changes in regard to asbestos and to the two to three metre high-risk work.

The Hon. R.I. LUCAS: And jurisdictional ones, you said.

The Hon. R.P. WORTLEY: The jurisdictional ones are just references to local bodies. SafeWork SA will be different from WorkSafe Victoria. That is all that involves.

The Hon. R.I. LUCAS: My understanding from the minister on 18 September—and I accept there might be name changes and I am not looking for such examples—was that there advisory bodies that existed in South Australia, which we were allowed in the agreement, evidently, to continue to include in our regulations, but they will be different.

I am not looking for name changes between SafeWork SA and whatever is the equivalent body in Victoria. However, my understanding from what the minister said previously, which I understood completely, was that there were some jurisdictional issues in relation to advisory arrangements that existed in South Australia, but did not exist in other states, and that we had been allowed, through the arrangement, to draft our regulations differently to recognise that.

I accept that the minister does not have it with him at the moment, by the sound of it, but is he prepared to provide to members of the committee who are interested a list of those differences between the state regulations and the federal regulations? That was my question on 18 September.

The Hon. R.P. WORTLEY: Yes, we are prepared, if there are any changes, to provide them to the opposition member.

The Hon. R.I. LUCAS: Thank you; that was all I was seeking. One of the issues in relation to this bill has been the government's announcement that up to $33 million of COAG payments or federal payments to the states were at risk if we amended the model bill. So in the stages when the government said the bill could not be amended, one of the arguments that the minister used was that there was $33 million at risk and a portion of that would not be paid to the states if there were amendments.

The government has changed its position and is amending the bill along the lines that the minister has just outlined. Can the minister indicate to the house the Treasurer's latest advice to him, that whether or not what he outlined earlier, that is, some portion of that $33 million, is at risk if the South Australian parliament is to amend the model bill?

The Hon. R.P. WORTLEY: None of the key elements have been changed and COAG has recently assessed that South Australian laws are highly consistent with the agreement.

The Hon. R.I. LUCAS: Who said that?

The Hon. R.P. WORTLEY: COAG.

The Hon. R.I. LUCAS: I am not sure how COAG has made that judgement; we have not actually passed them. Can you indicate when COAG made that judgement, particularly as members in this chamber have not passed any amendments to the legislation? Is the minister saying that COAG has met in the last two or three weeks since the announced deal with the Hon. Mr Darley? I am not familiar with COAG actually having met during that particular period.

The Hon. R.P. WORTLEY: COAG had a recent review and only recently, within the last few weeks, they handed down their report, and that indicated that the current bill is highly consistent with the agreement. The changes we are going to make do not change the pillars of this legislation, so we are quite sure that there will be no penalty for us when this is changed and this legislation is introduced.

The Hon. R.I. LUCAS: The minister indicated that the current bill is consistent and, in fact, that is correct: it is the model bill; that was the government's position, but the government is about to make and agree to significant amendments to the legislation. So is the minister saying that the Treasurer has been advised that there will be no penalty in relation to payments from the federal government to the state government should this bill be amended along the lines that the government is now outlining?

The Hon. R.P. WORTLEY: COAG will make that assessment in the reading of that, but this legislation before us today—this bill here—is highly consistent with what we are looking at, the model legislation, and we would not anticipate, if this is passed in the way we anticipate, there being a penalty.

The Hon. R.I. LUCAS: Can the minister indicate on what date the recent COAG summary of the legislation in South Australia was made?

The Hon. R.P. WORTLEY: I can provide the honourable member with that information.

The Hon. R.I. LUCAS: I thank the minister for that, if he could provide the date and exactly what COAG said in relation to the compliance with the model bill. In relation to the total package, which we members are going to have to debate over in the coming period, the minster has made a number of public statements, and a number of these have been made on radio which he would be familiar with, but on FIVEaa he said in relation to this total bill:

I don't think anything is going to change under the new act. Whatever applies at the moment under the occ. health and safety act, will apply under the new Work Health and Safety Act and this is where the confusion is coming in. Everyone seems to think there's going to be a massive change for the worse but it's not the case.

Does the minister stand by that particular statement that he made publicly?

The Hon. R.P. WORTLEY: The general thrust of this bill is that if people are complying with the current legislation they will have nothing to fear with regards to the new legislation, and I stand by that principle.

The Hon. R.I. LUCAS: The minister is not prepared to stand by the statement he made publicly to FIVEaa and a number of media outlets, when he said:

I don't think anything is going to change under the new act. Whatever applies at the moment under the Occ Health and Safety Act will apply under the new Work Health and Safety Act and this is where the confusion is coming in. Everyone seems to think there's going to be a massive change for the worse but it's not the case.

The minister is refusing to stand by a statement that he gave on radio FIVEaa during that particular Sunday night interview which I am sure he would recall.

The Hon. R.P. WORTLEY: I spoke a number of times on FIVEaa, normally trying to refute some of the disgraceful scaremongering which was put there by a number of the opposition and Independents. I stand by my statements that if people and businesses are complying with the current legislation they have nothing to fear in the new legislation.

The Hon. A. BRESSINGTON: Given the minister's response, can he explain why I have received a letter from the Civil Contractors Federation (which claims a membership of 500 companies employing over 18,000 South Australians) that has concerns about the proposed legislation? The first concern is the significant increases in monitoring, compliance, record-keeping costs (especially for small to medium-sized employers which account for over 80 per cent of employers in South Australia), and that the legislation is overly complex and difficult to interpret, which is likely to result in poor levels of compliance or even noncompliance, albeit unintentional. How can the minister stand by the statement that very little is going to change for business owners in this state?

The Hon. R.P. WORTLEY: During the whole debate on this issue over the last 12 months, I have heard various business associations make all sorts of claims. There were claims that there was going to be up to a $30,000 increase on a two-storey house and that the whole world was going to fall in. I will make it quite clear that I do not agree with that; I do not support that, and this is all part of a good campaign to oppose this legislation—it is as clear as that.

The Hon. R.I. LUCAS: I will not proceed with my previous questions, other than to note that, having been invited twice to stand by his public statements, the minister refused to do so. I note that the minister spoke with a forked tongue publicly because, when he was being attacked in relation to the changes under the legislation, he regularly made statements along the lines that I quoted (and I will not read it again); that is, there are no changes really under the proposed bill compared with the current act.

However, when he was speaking to different audiences, he spoke expansively about the major changes in terms of the need to modernise and make changes to work health safety laws in South Australia. So, when the audience required it and supported changes to work health safety, he said that these were major changes being held up by the Legislative Council, etc., but when he was being criticised for the detail he, turtle-like, ducked his head into his shell and said, 'Well, look, there are not really any major changes in this legislation at all.' Let the record show that, having been invited to stand by that statement twice in the chamber today, the minister refused to stand by the statements he made publicly.

Can I ask the minister if he can outline whereabouts in the committee stage and at which particular clause or clauses will the issues that were raised by SafeWork SA representatives publicly and the Premier, in relation to what is known as the Salvemini case, be canvassed and resolved? In which particular clause or clauses will those issues be canvassed and resolved?

The Hon. R.P. WORTLEY: Clause 17. Just in relation to the previous comments about not standing by my statements, I made it clear all the way along, and I stated on numerous occasions, that there would be changes to the legislation. Of course there are changes; that is why we want it to go through. There will be costs, and I have never shied away from the fact that there will be costs, but those costs will be minimal for people complying with the current legislation. I cannot be much more honest than that.

The Hon. R.I. LUCAS: I will not judge the minister's honesty completely, but he can be a lot more honest than the particular statements because, contrary to what the minister said—that he always said there would be changes—the actual quote I just gave, from the minister's own words on FIVEaa, was him denying that was the case. He was indicating that there were not going to be major changes in the legislation; basically this bill was the same as the current act. I think the record shows pretty clearly that the minister has not been prepared, in this house, to stand by his public statements.

In the minister's response to the second reading, but also briefly in clause 1 of the committee stage, he referred to some criticisms he made of the Housing Industry Association and other industry associations in South Australia—or I guess, more particularly, the consultants they employed. In the second reading I did list that the South Australian government actually employs the very same consultants for a number of projects it utilises. Putting that to the side for the moment, I think the minister's position is clearly that when those consultants work for the government they do good work and when they work for the Housing Industry Association they do bad work. I guess that is probably the minister's summary of the consultants' work.

His criticism, in part, hinged on the caveats that consultants give in terms of coming up with cost estimates. He read, for the public record, I think in the response to the second reading, a number of the caveats that those consultants put on the record. I want to put on the public record some of the statements by the minister's consultants, whom he says are truly independent and can be believed whereas the consultants employed the industry associations cannot be believed. Deloitte Access Economics was used by the government in a letter to Marie Boland, Director of Policy and Strategy, dated 3 February. They said:

We would caution, however, that estimates provided by businesses and organisations on the expected costs and benefits should be interpreted as indicative, given uncertainties involved in the estimation process.

The report of Paul Ogden Services Pty Ltd of February 2010 (one of the independent reports that the minister has quoted) said:

However, in the absence of good data on the level of compliance with current legislation separating out the cost of the old versus the new is very difficult if at all possible. This makes it difficult to estimate the cost impact, the consultant produces a range of estimates for certain items based on assumptions regarding compliance.

In Mr Ogden's firm's conclusion it states:

Estimating the costs of the introduction of the National Standard is a particularly difficult exercise given the dearth of industry wide statistical information available on current construction practice.

Further on they say:

...the introduction of the National Standard should not have a major impact on overall residential construction costs and housing affordability...

So in the work done by Paul Ogden and other consultants advising the government they also caution in relation to the accuracy of the work that they did for the government but they were also, of course, indirectly cautioning in relation to work done by consultants for any other industry organisation.

I want to put on the public record that, whilst the minister has referred to the caveats of consultants working for the industry associations, the consultants working for the government upon which the minister prefers to base his advice also issued similar warnings in relation to the difficulty, the accuracy and the caution that the minister and government would need to take into account in interpreting the results of the consultants employed by the government. They are the questions I have for clause 1.

Clause passed.

Clause 2.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The first indicated amendment is [Lucas-1] 1 and I understand there is also an amendment from the government, and they cover each other.

The Hon. R.P. WORTLEY: I am not going to move that amendment.

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

Page 13, line 6—Delete 'This' and substitute:

(1) Subject to subsection (2), this

I understand the Hon. Mr Darley wants to speak on this clause first.

The Hon. J.A. DARLEY: I will not be supporting the Hon. Rob Lucas's amendment.

The Hon. R.I. LUCAS: I thought the Hon. Mr Darley was going to outline the nature of the arrangements or deal that he had entered into with the government. I thought that was what he was about to do. I will speak to my amendment, even though the honourable member has indicated his position.

The Hon. J.A. DARLEY: I have two questions in relation to the model regulations relevant to this clause. Firstly, can the minister provide details of the transitional arrangements that are being proposed, especially as they relate to the model regulations and codes of practice? My second question relates to clause 292 of the model regulations which deal with the meaning of 'construction project'.

The construction industry has raised concerns about the assigned value of $250,000 for construction projects, pursuant to clause 292 of the model regulations. I am particularly concerned that the nominated figure is not subject to CPI, particularly given that, as I understand it, that figure was initially proposed some 13 years ago. If this is the case, it certainly would not reflect today's building costs. My advice is that, if the $250,000 figure had been indexed annually since the time it was initially proposed, it would amount to approximately $400,000 today.

I understand that the government is willing to give some consideration to this issue, especially since the clause in question does not become operational until after the transitionary period. Can the minister provide confirmation that this clause will be reviewed both at the state and federal level and that South Australia will, at the very least, consider moving towards indexing the figure?

The Hon. R.P. WORTLEY: I thank the Hon. Mr Darley for this question. The transitional regulations are found in regulation 2—Commencement, which I will table for ease of reference. They have been developed based on nationally agreed transitional principles. These principles are that if a regulation is the same or substantially the same as the current regulations, they will begin immediately. If there is a new obligation in the regulations, there is a transitional period of between six months and five years.

Those regulations which are transitioning relate to diving work, noise, high-risk construction work and safe work method statements, duties of principal contractors in high-risk construction work, the use, notification of the handling and storage of hazardous chemicals, work related to restricted and prohibited carcinogens, lead-risk work, and some asbestos regulations.

Where a code of practice refers to a regulation which is transitioning, that part of the code will not be relevant until the regulation comes into operation. I table various lists of regulations. I thank the honourable member for raising the issue of the meaning of 'construction project'. The regulations currently define a 'construction project' as a project that involves construction work where the cost of the construction work is $250,000 or more.

I accept that the intention of classifying construction projects is to ensure that attention is given to work activity that carries a high level of risk; however, I am of the view that the threshold of $250,000 needs to be reconsidered. Accordingly, I have instructed SafeWork SA to raise this issue in national forums involved in monitoring the application of the regulations.

Furthermore, I have directed that this matter is specifically flagged for the national review, when the work health and safety legislation is reviewed in 2014 and that any revised figure is set against changes to the consumer price index that have occurred since the definition was adopted and that figure be indexed annually against future price changes registered by the CPI. I will give serious consideration to adopting this at the state level should this not receive satisfaction at the national level.

I know that this provision is new in South Australia and as such will be subject to transitional arrangements. The regulation will not commence in South Australia until 1 January 2014, but in advance of that commencement date, I have requested that this be considered at the national level as a matter of priority.

The Hon. R.I. LUCAS: My question is essentially to the Hon. Mr Darley, whether or not he is prepared to answer. I ask whether he at this stage, on clause 2, is in a position to outline to the committee what is the nature of the agreements outside the legislation (and we will obviously go through that during the committee stage) in terms of anything that relates to regulations or red tape reductions or transitional arrangements, etc.—any understandings or agreements that he has entered into with the government which might be important to those members in this chamber who are considering aspects of the legislation.

The Hon. J.A. DARLEY: Those questions probably would be more appropriately dealt with at the introduction of other clauses, and I will be outlining those at that point.

The Hon. R.I. LUCAS: Obviously, no member of the committee can compel any other member of the committee to answer a question—I accept that reality—but I note that it does make it difficult for some members of the committee to know what understandings and agreements have been entered into. We may well pass over a particular clause expecting that there might be something—that, as we read from press and media reports, there have been understandings entered into.

I will give one example. Two industry associations indicated to me, after discussions with the Hon. Mr Darley and his staff, that, in relation to transitional arrangements, the honourable member had talked about not just regulations and codes of practice but issues in relation to penalties. I was not clear when I asked the industry associations, 'What does that mean?' To be fair to the industry associations, they did not say that there had been a deal done on that, other than that was an issue that you had been raising evidently with government negotiators in relation to the transitional arrangements.

I give that as an example that, given that we have literally pages and pages of amendments in relation to penalties, it would have been of use to me and perhaps to some other members of the committee if we were aware that the member was going to pursue that issue on a particular clause or whether there had been any arrangement entered into.

As I have said, I was not privy to the discussions; they were relayed to me by two industry associations, which outlined their understanding in relation to what the member was talking about in terms of transitional issues. This comes back to the amendment that I have moved, and that is, we are moving for the start-up date for the legislation, if it passes the parliament, to be 1 July, as opposed to 1 January.

Industry associations have pointed out to me that they have indicated in discussions with the Hon. Mr Darley that, if it was to be agreed that there be a six-month delay in the start-up date, the transitional arrangements would only be for six-months. If the start-up date was to be 1 January, then there would be a 12-month transitional arrangement. As I said, there were then issues in relation to what was intended by the government and the honourable member in relation to the transitional arrangements. I accept what the Hon. Mr Darley says, that he will raise the issues when we get to whatever the clauses are. As I said, I am not in a position to direct or compel the Hon. Mr Darley, or indeed any member, to respond any differently, obviously.

My question to the minister is: can he outline to the committee in relation to the transitional arrangements whether it is just the regulations or the codes of practice that are to be delayed? If the bill starts on 1 January 2013, is it just the regulations or the codes of practice that will be delayed by 12 months?

The Hon. R.P. WORTLEY: Yes, it is just the regulations.

The Hon. R.I. LUCAS: Not the codes of practice?

The Hon. R.P. WORTLEY: Not the codes of practice, unless there is a regulation that is delayed, of course, and then the code of practice will be accordingly.

The Hon. R.I. LUCAS: So is the minister saying to the committee that the codes of practice will be operational from 1 January next year?

The Hon. R.P. WORTLEY: Yes.

The Hon. R.I. LUCAS: This is ridiculous. There has been debate about a bullying code of practice being conducted nationally. I asked my office yesterday—and I will raise this at some later stage—to get a copy of this code of practice. SafeWork SA and Safe Work Australia cannot provide a copy of this code of practice, which you say is going to be operational from 1 January next year.

There is a significant national debate going on about this particular issue. I think the Australian Industry Group is now really the only industry association left supporting the government's position. I think every other industry group, including Business SA, is now opposing the government's position on this bill. It was reported:

The Australian Industry Group's representative on the board of Safe Work Australia, Mark Goodsell, yesterday said employers would start paying 'go-away money' to avoid court cases. 'Bullying is the new black,' he said. Every time something happens that an employee doesn't like—including reasonable and necessary and constructive criticism and performance management—they will say they feel bullied...The code lists 'not providing enough work' as a form of 'indirect bullying', along with constantly changing deadlines or setting timelines that are difficult to achieve. It advises employers to ban pranks and to discourage 'exclusive clubs or cliques' so workers are not 'ostracised' by colleagues.

The national code reflects the spirit of the federal Public Service policy on bullying, which even prohibits 'eye-rolling responses' that might 'diminish a person's dignity'.

Evidently, under this code of practice, which is going to be operational from 1 January, you are going to be in trouble if you roll your eyes in a workplace, because it might diminish a person's dignity and you are going to be in trouble if you do not provide enough work to a worker, because that is a form of indirect bullying.

There are any number of criticisms of many of the other codes of practice, and the minister is saying to this chamber that they are all going to be operational from 1 January. How is it that these things are going to be operational from 1 January? You and others are going to be voting for this legislation, the regulations and the codes of practice. They are going to be operational from 1 January next year and we cannot get copies of them.

The Hon. R.P. WORTLEY: The codes of practice that are going to be operational from 1 January 2013 are those that have already been approved. The bullying codes of practice are still in the process of being negotiated, and I imagine the honourable member would know that, so hopefully we are not going to go through this game all the way through with every single issue.

I would like to table a list of the following: model codes of practice which have been approved by Safe Work Australia members and the Select Council on Workplace Relations; the draft codes of practice being further refined by Safe Work Australia, which include managing the risk of workplace bullying; public comment, third set of codes of practice; public comment, fourth set of codes of practice; codes of practice under development by Safe Work Australia; and public comment, draft model work health and safety regulations and codes of practice for mining.

The Hon. R.I. LUCAS: Can the minister indicate on that, he said that the bullying code of practice, for example, was for public consultation. How can the public be consulted if the public cannot get a copy of the code of practice? How can it be consulted on if the shadow minister handling the bill in this place cannot get a copy of the code of practice from the Safe Work Australia or SafeWork SA websites?

The Hon. R.P. WORTLEY: All the codes which I have tabled just a second ago have all been approved. The workplace bullying is in the process and is not due for release until after 2014. They are waiting for the review.

The Hon. R.I. LUCAS: That is all very nice but that is not the answer to the question. I asked the question: how can the public or, indeed, a member of parliament provide input, in terms of the public consultation the minister promised or indicated, if you cannot get a copy of the draft code of practice on bullying?

The Hon. R.P. WORTLEY: All codes which have been endorsed are on the website. Because of the fact that the workplace bullying issue will not be completed or considered until after the review in 2014, the final copy is not on the website, but when they do put it up for public consultation it will be on the website.

The Hon. R.I. LUCAS: Is the minister then in a position to provide to members of the committee the current draft of the code of practice which has been criticised by the Australian Industry Group at the national level?

The Hon. T.A. FRANKS: It may assist the minister to direct the honourable member to the website. I can certainly see a draft code 'Preventing and responding to workplace bullying' currently on the Safe Work Australia website.

The Hon. R.P. WORTLEY: I suggest that the member brush up on his computer skills so that we do not have to waste so much time on clause 2.

The Hon. R.I. LUCAS: My office checked yesterday the website of Safe Work Australia and it was not on the website as of yesterday. I thank the Hon. Ms Franks. If that is the case, we will look at it. Will the minister indicate, in the list he has now tabled in relation to the endorsed model codes of practice, what is the process that approves the code of practice? That is, is it at officer level that those codes of practice are approved, or have ministers signed off on all those codes of practice that the minister has now tabled?

The Hon. R.P. WORTLEY: It is done on a tripartite basis where there are government unions who employ employees. Once it has reached a certain stage it then goes out to the public arena.

The Hon. R.I. LUCAS: I understand the point the minister is making, that is, that they are worked up on a tripartite basis and then they go to public consultation, but I wanted to know how they are ultimately approved. Is there a national meeting of officers equivalent to SafeWork SA that approve them, and do ministers like minister Wortley, at a ministerial council meeting (or whatever they are called now—select councils) approve each of these, and have you approved each of these endorsed model codes of practice on the list you have just provided?

The Hon. R.P. WORTLEY: Yes, they are endorsed by Safe Work Australia and then endorsed by the select council.

The Hon. R.I. LUCAS: So the minister is saying that he and other ministers have all endorsed those particular codes of practice that have been listed on this particular tabled document?

The Hon. R.P. WORTLEY: Only the top ones that have been approved.

The Hon. R.I. LUCAS: The endorsed model code?

The Hon. R.P. WORTLEY: Yes.

The Hon. R.I. LUCAS: I will obviously have my office check, but in the document that has just been tabled by the minister he says:

The following codes of practice are currently being revised and it is envisaged materials in these matters will be finalised later in the year.

One is managing the risk of workplace bullying. So for the benefit of the Hon. Ms Franks, it is possible that what is on the Safe Work Australia website is the previous one, which is now being revised and it is not the draft. My office has advised me that, on being asked where was the latest draft when they checked yesterday, they were told that the latest draft is not currently available and we were unable to get it.

It is possible that what is on the website is the old or existing bullying code of practice and not the one being revised and which is the subject of criticism from the Australian Industry Group and others at the national level. I am not in a position to say which of the two scenarios is correct, but I am saying that it is possible that what is on the website is the older existing one and not the one that is creating the controversy with the Australian Industry Group and some other national bodies as well.

The Hon. T.A. FRANKS: I realise I do not have to respond to the question from the honourable member; however, that is the draft that went out for public comment. It currently says that, in response to the public comment on that draft, there is a revised version being prepared. However, the text he read out is in the current draft that is available on the Safe Work Australia website.

The Hon. R.I. LUCAS: In relation to the process, the minister has indicated that the select council of ministers will approve each of the codes of practice. Is the minister indicating, therefore, that all the preparatory work that is required to be done by SafeWork SA has been done for those 20 or so endorsed model codes of practice, to be operational in their entirety from 1 January next year?

The Hon. R.P. WORTLEY: My advice is yes.

The Hon. R.I. LUCAS: In relation to the regulations, with the jurisdictional changes and the other changes being agreed with the Hon. Mr Darley, is the minister indicating that all those regulations will be operational from 1 January 2013 except for, as I understand the minister's advice, the new ones which will be delayed by 12 months?

The Hon. R.P. WORTLEY: There is a range of transitional periods for the various changes and new regulations. It goes from one to—

The Hon. R.I. LUCAS: Can the minister indicate who makes the judgement? Is it SafeWork SA who makes the judgement? The minister read out earlier that if it is an existing regulation it will continue, obviously, and if it is a new one it is going to be delayed. I think that that is a shorthand version of what I understood the minister to say. Is it SafeWork SA that makes that judgement and do they have delegated power to do that, or does the minister have to sign off on the operational dates for each of the regulations, whether it be 1 January or whether it is going to be delayed?

The Hon. R.P. WORTLEY: The transitional principles were agreed at a national level, at Safe Work Australia.

The Hon. R.I. LUCAS: I understand that, but I am asking what they are; that is, who has the delegated power to make the decision? The minister is saying that some of these regulations will continue and that some are going to be delayed. Who makes the decision as to which regulation starts on 1 January and which regulation starts on 1 January 2014?

The Hon. R.P. WORTLEY: My advice is that the decision is made by SafeWork SA in consultation with the SafeWork SA Advisory Committee, which is a tripartite committee.

The Hon. R.I. LUCAS: Has SafeWork SA, together with that advisory committee, made that decision, and are members of parliament in a position, either on the website or through tabling, to know which of the regulations will be starting if the bill passes on 1 January 2013 and which will be delayed and by what period of time? If that decision has already been taken by SafeWork SA based on advice from the advisory committee, can he indicate where we can get a copy of that document?

The Hon. R.P. WORTLEY: My advice is that that information is in the material we just provided. I tabled two documents: one was a list of regulations and one was a list of what you want. I tabled some regulations and responses. They took my only copy, so I would not mind a copy myself.

The Hon. R.I. LUCAS: Whilst the minister retrieves his copy of the document, the minister is saying that the document that he has tabled—that is, a draft of the regulations—has been approved by the advisory committee and SafeWork SA and that that document outlines which regulations will be delayed and which ones will be operational from 1 January 2013?

The Hon. R.P. WORTLEY: Yes. My advice is that they have all gone through the advisory committee and the drafting instructions all go through the subcommittee of the SafeWork SA Advisory Committee.

The Hon. R.I. LUCAS: In response to the earlier question, the minister said that the delegated responsibility rested with SafeWork SA but, if the minister's answer is now that it is by way of regulations, I am assuming that he as minister has to approve the decisions of SafeWork SA and take them through cabinet and Executive Council so that it is not a delegated responsibility to SafeWork SA. They might do all the work, but ultimately is it not correct that he and Executive Council have to sign off on all of the agreements or proposals from SafeWork SA?

The Hon. R.P. WORTLEY: Yes; before they are even drafted they go through cabinet.

The Hon. R.I. LUCAS: So it's your responsibility?

The Hon. R.P. WORTLEY: Yes.

The Hon. R.I. LUCAS: I am, in part at least, comforted by that because I do not believe that these sorts of decisions should be left in a delegated fashion to SafeWork SA, with the greatest of respect to SafeWork SA in relation to those issues. In relation to the legislation, on 18 September the minister indicated that if the parliament was to pass the legislation it was the government's intention that the whole of the act would be proclaimed and operational from 1 January and that there was no intention to delay operation of any particular clauses or sections of the bill. Is that still the government's position?

The Hon. R.P. WORTLEY: Yes, it is.

The Hon. R.I. LUCAS: I thank the minister for the answers to those questions. In speaking to the amendment that I have moved—and has the minister moved one as well?

The Hon. R.P. WORTLEY: No.

The Hon. R.I. LUCAS: He is not going to move it. Can I ask the minister if there is to be an amendment moved at some stage? The minister had previously filed an amendment in relation to 1 January 2013. Is the minister not intending at any stage to move that amendment?

The Hon. R.P. WORTLEY: No, I am not. We are going to do it by proclamation.

The Hon. R.I. LUCAS: Is the minister indicating—if he is now withdrawing that particular amendment—that the government intends to proclaim the whole of the act by 1 January 2013?

The Hon. R.P. WORTLEY: That is right.

The Hon. R.I. LUCAS: If that is the minister's case, why is he not moving the amendment that he had already on file to require that to occur by 1 January 2013?

The Hon. R.P. WORTLEY: Because we are just going to do it by proclamation.

The Hon. R.I. LUCAS: I had not realised that was going to be the government's position. The amendment, therefore, that I have moved is that it be delayed until 1 July 2013. However, in speaking to my amendment, it is clear now that the government has backed away from its amendment for 1 January, and that it is obviously leaving open the possibility for delay in the proclamation of the legislation, because its amendment on file, which will not now be moved, was for it to be proclaimed on 1 January next year.

The government has now backed out of that and indicated that it is now not going to require that in the legislation. It is basically saying, 'Well, you can trust us. We're going to proclaim it for 1 January next year.' As one member in this chamber I do not trust (a) the minister or (b) this government in relation to the legislation, and that is fair enough. We can all have our positions as to whether or not the minister and the government merit trust in relation to the commitments they give.

The reason we have moved the amendment for 1 July 2013 is the significant response from every industry group in South Australia now, with the exception of the Australian Industry Group. Previously, the minister had laid claim to the fact that the pre-eminent business association, Business SA, was supporting the government's position; as the minister knows, that is no longer the case. All the other industry groups, with the exception of the Australian Industry Group, have now indicated to the government, to the minor parties, the Independent members, and to the opposition, that they have significant concerns with the government bill.

The vast bulk of those who have corresponded with me in the last couple of weeks have also indicated their concern that they, as businesses, are just not in a position to be ready by 1 January next year. A number of individual businesses, not just the associations, have spoken to me in the last week or so to indicate that many of them had prepared manuals, processes, procedures, training programs, in relation to preparing their directors, managers and staff for the operation of the model bill. Whilst in many cases they opposed it, they recognised that ultimately it might come to fruition, so they needed to prepare for it, and many of them have done the preparatory work.

What they have indicated in a couple of these businesses, those I have characterised as medium-sized businesses in South Australia, is that they have employed consultants to put together their training manuals and those sorts of things. They are saying that when this bill passes the parliament, and given that the government has now changed its position—that is, that the bill is going to be amended—they will now have to rewrite significant sections of those training programs and manuals.

There are a number of examples, but let me give a couple; one is that the government is now, for the first time, agreeing to introduce a version of a control amendment, an amendment that has been championed by the Liberal Party for 12 to 18 months in South Australia. All through that period, the government has trenchantly opposed that amendment—and we will come to that in clauses 13 to 17 later in the committee stage.

A number of these businesses, together with business associations, say 'Well, we will now need to get legal advice in relation to what the position will be,' if it will be significantly different from some other aspects of their training programs and things they have prepared for. In relation to union right of entry, a number of businesses have said that the Hon. Mr Darley, supported by the government, is introducing a number of amendments in relation to union right of entry.

I will not go through the whole list of the other amendments that are going to be there, but the bottom line is that these individual industries, as well as industry groups, have said, 'We've been preparing for the model bill, but there are now going to be changes as a result of the parliamentary process.' They are now going to have to go back not to square one, because they have done a lot of work, but they will have to revisit a number of aspects of what they had been doing, and were intending to do, all to be ready because people can be prosecuted from 1 January next year.

The minister is saying that, bang, from 1 January next year the legislation is there and with these regulations, with the exception of a small number that are delayed by transitional provisions, and these 20 or so codes of practice that have been endorsed, as from 1 January next year you are on your own. From day one next year, SafeWork SA can be sending out its inspectors and pinging people left, right and centre in relation to breaches of the new legislation, the new regulations and the new codes of practice.

It just seems sensible that, if the government ultimately is to have its way, at least there be an appropriate period for businesses and industry and other stakeholders to prepare for the impact of the amendments that are going to be made to the model bill and the changes to the regulations, obviously, because in a limited number of cases they have agreed to some amendments there that will impact on high-risk industries in relation to falls and that important part of the construction industry regime and also the codes of practice will be operational from 1 January under the government's model from next year.

It is for those reasons that the Liberal Party is moving that, if this bill is to pass the parliament, it would make sense to give industry an appropriate period of breathing space to prepare for what will be potentially significant new imposts and risks and responsibilities that all will have in relation to work, health and safety once the bill, the regs and the codes of practice are operational.

The Hon. R.P. WORTLEY: I just want to make a bit of a contribution. First of all, the changes that are anticipated are not widespread. There will not need to be significant changes to any manuals or procedures which employers have embarked upon. Just remember that we originally wanted this legislation on 1 January 2012. We then were hoping for 1 July 2012 and each time we believe it has been unnecessarily opposed and stalled by the Hon. Mr Lucas. It is very hard to cry tears when we believe that every day we postpone this gives cause for the possibility of a worker being very seriously injured or killed in the workplace.

The CHAIR: The Hon. Mr Lucas, you have not moved your amendment No. 2 which I understand is contingent upon amendment No. 1. Are you prepared to move Nos 1 and 2 together?

The Hon. R.I. LUCAS: I am happy to move them as a block.

The Hon. R.P. WORTLEY: There has been a change, I understand. The Hon. Mr Lucas had such a powerful argument that we want to put our amendment back on the table and move our amendment with a commencement date of 1 January.

The CHAIR: We have to try to get the sequence right. Dealing with the Hon. Mr Lucas's amendment No. 1, he is re-inserting his original amendment. I am dealing only with amendment No. 1.

The Hon. R.P. WORTLEY: If the Hon. Mr Lucas' amendment does not succeed, we will then move our amendment.

The Hon. R.I. LUCAS: Mr Chairman, all of a sudden, the minister has changed his position; I just want to know what he has changed it to. I had moved my amendments en bloc, so I will have to seek leave to withdraw that, I assume. Can the minister indicate exactly which amendment he is re-inserting and what it will actually do so that the rest of us can understand what it is the minister is now asking us potentially to vote for or against?

The CHAIR: The Hon. Mr Lucas has moved amendment No. 1.

The Hon. R.I. LUCAS: En bloc.

The CHAIR: Yes, we were going to do that. Now the minister has advised that he will move his amendment No. 1—delete 'a day to be fixed by proclamation'—which was the second amendment received, and then there is the Hon. Mr Lucas' third amendment, which is amendment No. 2. I am proposing to put the first amendment—

The Hon. R.P. WORTLEY: The amendment I will be moving fixes a date of commencement of the legislation of 1 January 2013.

The Hon. B.V. FINNIGAN: Mr Chair, you are proposing that we vote now on the Hon. Mr Lucas' amendment—

The CHAIR: Amendment No. 1, yes.

The Hon. B.V. FINNIGAN: —the effect of which would make the proclamation date not earlier than 1 July 2013?

The CHAIR: Correct.

The Hon. B.V. FINNIGAN: I advise the committee that I support the proclamation being 1 January, or at least I do not support it being held off until 1 July. I appreciate that businesses have concerns about the implementation of this bill—it is a very significant change in workplace regulations—but it is certainly not as if this bill appeared on the Notice Paper last week.

Even after getting to the point of having a bill introduced in South Australia, there will be years of consultation and talking at a national level, through COAG, and many other fora. It has always been the dream of business not to have six different health and safety regimes, one operating in each state, and, in fact, to have a nationally consistent system, and that is what the federal government worked towards, particularly in the wake of the WorkChoices legislation and the High Court decision upholding that.

Since we virtually have moved, in effect, to a national industrial relations system, it seemed logical to do the same for health and safety. The genesis of this bill is very long, and businesses, unions and workers have had a long time to digest its contents and to think about what impact it is going to have. I imagine that the Hon. Mr Lucas will say, 'Well, that was before agreements being made with members of this house.' But if we are to accept the logic that businesses or employers are not ready, you could effectively delay the bill indefinitely on that basis. So, I support an earlier proclamation date.

The Hon. T.A. FRANKS: For the benefit of possibly not having as many divisions as I suspect we will have on this bill, I indicate that the Greens will oppose the Lucas amendments Nos. 1 and 2; we will support the government amendment to delete 'a day to be fixed by proclamation' and substitute '1 January 2013'. Of course, should that also fail, we will be comfortable with 'a day to be fixed by proclamation'.

The committee divided on the amendment:

AYES (8)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Lensink, J.M.A. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES (9)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. (teller) Zollo, C.
PAIRS (4)
Lee, J.S. Hunter, I.K.
Hood, D.G.E. Vincent, K.L.

Majority of 1 for the noes.

Amendment thus negatived.

The Hon. R.P. WORTLEY: I move:

Page 13, line 6—Delete 'a day to be fixed by proclamation' and substitute:

1 January 2013

Amendment carried.

The CHAIR: The Hon. Mr Lucas, you have a question?

The Hon. R.I. LUCAS: There are no more amendments you want to pass, Mr Chairman?

The CHAIR: Normally I would call you to order, but I will not this time.

The Hon. R.I. LUCAS: Now that the committee has endorsed a 1 January 2013 start-up date, can I just clarify that all of those codes of practice listed on the endorsed model codes of practice list the minister tabled are currently available on SafeWork SA's website and are available to industry?

The Hon. R.P. WORTLEY: Yes; they are available on the Safe Work Australia website and SafeWork SA is linked to that.

The Hon. R.I. LUCAS: As the minister has outlined in relation to the regulations there were differences in South Australia to some of the other jurisdictions. In relation to the endorsed model codes of practice, were there any changes in any of those codes of practice for South Australia as opposed to the model codes of practice?

The Hon. R.P. WORTLEY: My advice is, no.

The Hon. R.I. LUCAS: In relation to the process for the future codes of practice, such as the workplace bullying codes of practice and others, is there the capacity for jurisdictions like South Australia to endorse a code of practice which is different to a code of practice that exists in other states, as South Australia intends to do with the regulations? For example, it is going to have a three metre height limit for high-risk industries when everybody else, evidently, is going to have two metres. Is there the capacity for the South Australian jurisdiction to endorse codes of practice which are different from the model codes of practice?

The Hon. R.P. WORTLEY: No; we are committed to, where possible, principles of harmonisation. So, when this legislation is over I will not have to say it anymore.

The Hon. R.I. LUCAS: There is no point in saying it now because you are no longer committed because you are changing it, but that is not my question. As I understand it, the minister is saying, 'Look, your current commitment is that', but what I am asking is what the legal position is. That is, legally, should this government want to—and I accept that your current policy position is that you do not want to, but if you wanted to, as you did with the regs and you, as a result of needing to do a deal, changed two metres to three metres—do you have the legal authority to approve a code of practice in South Australia on workplace bullying which is different to the national code?

The Hon. R.P. WORTLEY: Clause 274 states:

(2) The Minister may only approve, vary or revoke a code of practice...if that code of practice, variation or revocation was developed by a process that involved consultation between—

(a) the Governments of the Commonwealth and each State and Territory; and

(b) unions; and

(c) employer organisations.

The Hon. R.I. LUCAS: So, you can change it, if you go through that process?

The Hon. R.P. WORTLEY: No; you have to go through the national—

The Hon. R.I. LUCAS: The minister quoted clause 274. As I read 274, it says:

(1) The Minister may approve a code of practice...and may vary or revoke an approved code of practice.

(2) The Minister may only approve, vary or revoke a code of practice under subsection (1) if that code of practice...was developed by a process that involved consultation—

I am not sure what the minister is saying to us. It would appear that, as long as you go through the process of consultation, you might have the legal authority. Is the minister saying that his legal advice is that he does not have the legal authority, after going through a process of consultation, to adopt a code of practice in South Australia that is different from the code of practice nationally?

The Hon. R.P. WORTLEY: We actually have agreed with a process by which there will only be changes or revoking if it went through that process. Legally, within the law I suppose there is a position where that can be done.

The Hon. R.I. LUCAS: That answer now, on my reading of 274 to which the minister referred, is different from what he was saying to us only a couple of minutes ago. I do note I think—and I assume the minister is supporting this—that in relation to one of Mr Darley's amendments, which I think the minister is indicating he is supporting, that 274 will be varied. When we get to that, the Hon. Mr Darley will obviously outline the details, so we do not need to debate it now. He is flagging that the minister may go through a particular process of varying a code if it goes through this process.

Can I ask the minister at this stage (and we will need to go through the detail in 274): where the Small Business Commissioner must be consulted before a code of practice is submitted to the minister, has the minister entered into any arrangement with the Hon. Mr Darley for these 20 or so codes of practice that are already to be operational from 1 January 2013?

Business and industry have lobbied me, the Hon. Mr Darley and all members complaining about the 40 or so codes of practice and the 90 pages or so in some of them. I know they have put details to members like the Hon. Mr Darley and others. When we come to the later parts of the committee stage, I will be moving amendments that will allow the parliament to disallow codes of practice and to require a process to go through the advisory committee.

The Hon. Mr Darley has negotiated an alternative process, which he says is that the Small Business Commissioner will look at those codes of practice. but if the minister is saying that all these codes of practice which have already been approved will not be referred to the Small Business Commissioner, there will be very strong opposition raised by the construction industry and others because I think they have been led to believe that they prefer the amendments the Liberal Party is moving, but I think the Hon. Mr Darley has put the position that the alternative process is that these will go to the Small Business Commissioner.

If what the minister is saying in relation to this and to subsequent clauses in committee is that, with all of these codes of practice that have been and done, none will be referred to the Small Business Commissioner, there will be very significant concern raised by the construction industry, the housing industry and others who have grave concerns about some of the detail of the codes of practice, which have been endorsed, in their view, with little thought about practical reality in their industries.

The Hon. R.P. WORTLEY: I do not accept that. The fact is, though, that all those that have been already endorsed by Safe Work Australia have already gone through a tripartite process and have been endorsed at the ministerial select council. There is no arrangement to forward any of the current ones that have been endorsed but the Small Business Commissioner will be consulting with all future ones.

The Hon. R.I. LUCAS: I think industry is being dudded by this process that you have just outlined. You are saying that you are going to refuse to have any of these codes of practice go through the Hon. Mr Darley's Small Business Commissioner process, and that is not what industry has been led to believe. Industry has been led to believe that the deal was not to support the Liberal Party amendments because they were going to go through the Small Business Commissioner to look at the impact on small business. You are saying that you are going to rush as many of these codes of practice through before the Small Business Commissioner process is set up, so the Hon. Mr Darley's amendment will be for whatever remaining codes of practice that have not been completed by 1 January next year.

As I said, there will be very significant opposition from the construction industry in particular to them being sold a pup by you and others who support you in relation to the supposed protection of the Small Business Commissioner looking at these codes of practice, because a lot of the concern from industry has been about the bill, I accept, and then the regulations, but a lot of it has been in relation to the details of the codes of practice. You are being refreshingly honest, for once, in relation to your understanding of the deal that you have done with Hon. Mr Darley but, clearly, now that this has been revealed, there is going to be very strong opposition to what the minister has just outlined to the committee on behalf of the government.

The Hon. R.P. WORTLEY: What we are seeing here is another classic example of the boy who cried wolf. Over the last 12 months I have heard the Hon. Mr Lucas spread fear and concern amongst the volunteers of this state saying the world was going to collapse underneath their feet when actually all the volunteer associations supported this legislation. I then heard Mr Lucas spread fear and loathing to the new home buyers because he was saying that house prices were going to increase by $20,000 to $30,000. I have heard all of this before from Mr Lucas. He will go down fighting and I admire that, but the fact is that he is the boy who cried wolf. We will discuss with Mr Darley the intention of his amendment.

The Hon. J.A. DARLEY: Just to clarify, my amendment concerning the Small Business Commissioner applies to new codes.

The Hon. R.I. LUCAS: Indeed, and that is just what I read out. It does apply to new codes, which means all of the codes that are going through—which are of grave concern to the construction industry and the housing industry and related industries in South Australia who believed that they were going to have a process of the Small Business Commissioner to vet them in terms of their reality and practicality, and what the cost impacts would be and, potentially, having the Small Business Commissioner protecting their interests—have all been sold down the drain because the minister is saying, and the Hon. Mr Darley is saying, 'Hey, if you get them in before 1 January, go your hardest. They are not going to apply; they are not going to go to the Small Business Commissioner.'

Some that are listed on that one—as the Hon. Mr Darley and the minister will know—are the ones that the Housing Industry Association and others have been trenchantly concerned about, and they have shown the minister, the Hon. Mr Darley and myself the impractical detail of some of the drafting of the current codes of practice. One only has to look through that list, and I will not read all 20 of them—actually, I will put them on the public record because it has only been tabled.

They are: how to manage work health and safety risk; hazardous manual tasks; managing the risk of falls at workplaces; labelling of workplace hazardous chemicals; preparation of safety data sheets for hazardous chemicals; confined spaces; managing noise and preventing hearing loss at work; managing the work environment facilities; work health and safety consultation, cooperation and coordination; how to safely remove asbestos; how to manage and control asbestos in the workplace; first aid in the workplace; construction work; preventing falls in housing construction; managing electrical risks at the workplace; managing risks of hazardous chemicals in the workplace; managing risks of plant in the workplace; safe designer structures; excavation work; demolition work; welding processes; spray-painting and powder coating; and abrasive blasting.

They are the endorsed model codes of practice the minister has tabled today (or the list of them) that he says are done and dusted and will not go through this process of the Small Business Commissioner that we will debate in the committee stage. There will be others that potentially, if they are approved between now and 1 January 2013, similarly will not have to go through the Small Business Commissioner's process.

Mark my words, SafeWork SA and the minister will be hightailing it over the coming two months to get as many of these codes of practice through before the Small Business Commissioner has an opportunity to look at them. It will not just be new ones from today, it will be new ones from 1 January 2013 in the amendments. Any new codes of practice between now, in October, through to 1 January the minister can get up and through the process will not have to go through the Small Business Commissioner process that is going to be debated in the committee stage.

The Hon. J.A. DARLEY: When I put forward the idea of the Small Business Commissioner, I spoke to the industry groups and made it clear that I would make representations to the government about the existing 40 codes of practice, but I also made it quite clear afterwards that the government did not agree.

Amendment carried.

The CHAIR: Mr Lucas, I am advised that your amendment No. 2 cannot sit with the one we have passed, so you not proceeding with it?

The Hon. R.I. LUCAS: No, we would have two dates if we did that.

Clause as amended passed.

Clause 3 passed.

Clause 4.

The Hon. R.I. LUCAS: Clause 4 is the definitional clause, which is the foundation upon which the new bill is based. On page 14 under corresponding WHS law, there is reference to the Mines and Works Inspection Act. There are different arrangements, as I understand it, in relation to the regulation of the mining industry nationally as part of this supposed harmonisation of occ health and safety laws. Can the minister outline to the committee what the current understanding is in relation to mining regulation and where South Australia sits in relation to being in the majority position, or the minority position in terms of the way we are approaching the regulation of the mining industry?

The Hon. R.P. WORTLEY: They will be ready for 1 January 2013. We will be adopting them, and there will be a 12 month transition period.

The Hon. R.I. LUCAS: I understand that, but I also understand that there is a different position being adopted in some other jurisdictions. That is, some jurisdictions are not including the mining industry within the work health safety legislation. What I am trying to ascertain is whether the position we are adopting, where we are saying that the mining industry is covered by work health and safety is, I guess, the majority position. That is, are all other jurisdictions, with the exception of one or two, going down that path or are we in the minority position in relation to regulation of the mining industry?

The Hon. R.P. WORTLEY: Western Australia, Queensland and New South Wales have developed mine-specific regs, but they are also adopting the national model regs. We are just adopting the national model regs.

The Hon. R.I. LUCAS: Can I clarify that? Is the minister saying that in New South Wales, Western Australia and Queensland all the national regulations for the mining industry are being applied and they have added some additional ones, or have some of those jurisdictions refused to implement some of the national regulations for the mining industry and have substituted some of their own?

The Hon. R.P. WORTLEY: They are taking all the national models and are developing a few additional ones for themselves.

The Hon. R.I. LUCAS: Given the importance, we hope, at some stage in the future, of the mining industry to South Australia, did the mining industry put a position to the government and/or SafeWork SA in relation to mining-specific regulations that it wanted to see, as has occurred in New South Wales, Queensland and Western Australia?

The Hon. R.P. WORTLEY: My advice is no.

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

Page 17, after line 32—Insert:

'volunteer association' means a group of volunteers working together for one or more community purposes;

This is the first of two amendments from me on clause 4. It is in relation to a series of amendments we propose to move in relation to volunteers. I noticed that the minister engaged in a vicious attack on my integrity and position with regard to this bill as it relates to volunteers. I reeled as I felt the full force and full brunt of that vicious assault from the minister. However, having recovered from that vicious assault, I wanted to say that the minister has himself been making a number of claims in relation to the issue of volunteers. In part the minister said 'Hey, Volunteering SA and other volunteer associations are supporting the government's position.'

As I said in the second reading, that is not surprising because the government and government advisers have assured the volunteers that there is no change, as it impacts on volunteers in South Australia, from the new bill. That is, the government has been making a number of claims to volunteers, which I intend to outline, that I believe are false. They have been given assurances by the minister and by the government, and by officers working on behalf of the minister and the government, in relation to the impact on volunteers. On 14 February, the minister said:

A volunteer cannot be charged for a breach of the Occupational Health and Safety Act. They can only be charged if they cause injury or death through reckless or negligent behaviour. If they weren't charged under the Occ Health and Safety Act, there would be some other act they would be charged under if they caused a death under those circumstances.

The key part of that is that the minister has told volunteers—and told anyone who listened to him on the media, as he criticised both the opposition and Mr Ralph Bonig, the then president of the Law Society—that a volunteer cannot be charged with a breach of the Occ Health and Safety Act; they can only be charged if they cause injury or death through reckless or negligent behaviour. Can the minister indicate where in the bill he can substantiate that extraordinary claim that he has made in relation to the impact of the bill on volunteers?

The Hon. R.P. WORTLEY: Volunteer SA and Volunteer Australia have not come out in support of this bill based on my conversation on FIVEaa. They undertake significant legal advice, and the legal advice is consistent with our legal advice in regard to volunteers which is totally contrary to the hysteria caused by the Hon. Mr Lucas.

Volunteer officers of a PCBU cannot be prosecuted for breaching officer duties under the bill. Volunteers at a PCBU can only be liable for breaching their duties as workers or other persons at the workplace, which is to take reasonable care of their own health and safety, and that is the same as currently applies.

The Hon. R.I. LUCAS: That is not what the minister has been saying publicly. Let me repeat what the minister has been saying publicly:

A volunteer cannot be charged for a breach of the Occupational Health and Safety Act.

That is just palpable nonsense. Safe Work Australia's website and SafeWork SA's website both acknowledge that, in certain circumstances, volunteers can be prosecuted for breaches of the Occupational Health and Safety Act, so does the minister acknowledge that what he was telling volunteers (and anyone else who would listen) was wrong when he said that a volunteer cannot be charged for a breach of the Occupational Health and Safety Act?

The Hon. R.P. WORTLEY: The volunteer associations, who very strongly support this legislation, have done so after extensive legal advice. I would also reiterate the comment I have just read—that they cannot be prosecuted under the bill as an officer, only as a worker.

The Hon. R.I. LUCAS: That is going to be a huge comfort to the thousands of volunteers who are not officers in South Australia, who happen to be volunteers working. I am not sure what the minister's experience with volunteer organisations has been. I think he has indicated previously that, before he became a member of parliament, he did have experience in volunteer organisations, but most of the volunteers are not officers. They are not the president, the secretary or the treasurer.

They are just volunteers who work for good causes, as I am sure the minister would have done prior to becoming a member of parliament, and he has continued with some other causes as well since he has become a minister. That is to his credit, but what the minister is saying is that there is a position if you are the president or the secretary, if you are an officer, but what he is saying is, 'If you are a volunteer, don't believe what I was saying before,' because what he said before and what he has been saying publicly and telling volunteers is that a volunteer cannot be charged for a breach of the Occupational Health and Safety Act.

He did not say, 'If you happen to hold office in a volunteer association or organisation, in those particular circumstances you cannot be prosecuted.' He went out there publicly and did not tell the truth in relation to the legislation. What he said was that a volunteer cannot be charged for a breach of the Occupational Health and Safety Act. He went further and said that you can only be charged if you cause injury or death through reckless or negligent behaviour. That is just palpably untrue.

As the minister has read his advice from his adviser, there is a range of offences—and the legal advice provided to the opposition makes it quite clear that there are a range of offences—for which volunteers can be prosecuted under the proposed bill, and some of those offences they could not be prosecuted for under the existing act, contrary to the assertion the minister has been giving publicly and has just given again to the committee. Further on, on the same day, 14 February, on the Bevan and Abraham breakfast radio program, the minister went on to say:

Any volunteer that has obligations now, there will be no difference with the new workplace health and safety legislation. If you've got obligations now, you'd have obligations under the new act.

I know we are about to break for dinner, but this is an important issue. I indicate to the minister that that, too, is palpably untrue. He has been misleading volunteers and anyone who will listen to him in relation to the implications of this act for volunteers on a serial basis during public debate on this issue. It is no wonder that volunteers are saying, 'We're quite comfortable with the legislation,' because they have had assurances from someone whose position they thought they could trust, and that was the minister in charge of the legislation.

The Hon. R.P. WORTLEY: I am aware of the time, but this is just another case of the Hon. Mr Lucas taking out of context my conversation on radio. For many years, volunteer organisations have been telling us that the duties they have under the Occupational Health and Safety Act are onerous and that, really, they would like to be excluded. So, what this government is doing with this legislation is to exclude from the act any volunteer organisation that is 100 per cent volunteer, and this is the context of my conversation.

Many thousands of volunteers—by far the vast majority of volunteers—work in organisations that do not hire someone, and they now have no obligation under the act, so they cannot be prosecuted under this act. I must say that I was quite horrified by the terror of some of these volunteers—these decent people who volunteer day to day at the local schools, etc.—that they would be prosecuted and fined many thousands of dollars, which was reported by that person over there.

The fact is, though, that the volunteers are very happy with the provisions we have in this bill. No longer will the vast majority of volunteers who work for purely volunteer organisations come under the act, but those who do come under the act cannot be prosecuted as an officer, but they can be prosecuted as a worker. At the moment, that is how it is under the current act.


[Sitting suspended from 18:04 to 19:49]


The Hon. R.I. LUCAS: In addressing the arguments for this package of amendments on volunteers, I have reminded the minister about a number of guarantees and undertakings that he had given publicly to volunteers and to anyone who would listen that 'a volunteer cannot be charged for a breach of the Occupational Health and Safety Act, they can only be charged if they cause injury or death through reckless or negligent behaviour,' and various other guarantees and undertakings that the minister has been giving volunteers and others incorrectly, given the legislation that is before us.

I refer to the Safe Work Australia website under the heading 'Frequently Asked Questions: Volunteers, Volunteer Organisations and the model Work Health and Safety (WHS) Act'. This is Safe Work Australia, which is championing this particular legislation. The question is, 'As a volunteer, can I be prosecuted under the Work Health and Safety Act?' The answer is:

Volunteers who carry out work for persons conducting a business or undertaking (PCBUs) are required to take reasonable care for their own health and safety and not to create risks to others. Like any other duty holders who do not comply with their duties under the Work Health and Safety Act, workers, including volunteer workers, can be prosecuted for failing to comply with their duties.

That is straight from the horse's mouth; that is from Safe Work Australia. It is replicated on the SafeWork SA website. It makes it quite clear that volunteers can be prosecuted under the model WHS act, and that is contrary to the assurances that the minister has given, as I said—and I have quoted a number of them. There were any number of others that I could have quoted, but I am not going to delay the proceedings of the council any more than I need to.

Those two or three that I have already quoted make it quite clear that volunteers in those circumstances can be prosecuted under the legislation. Even in the minister's second reading explanation, he sought Crown Solicitor's advice in relation to the position of volunteers. There were a number of leading questions that were put forward by the minister and his officers to crown law, but that is fair enough. One question was: 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? The answer was:

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...

I mean, it is quite clear, even from crown law's advice, that the volunteers can be prosecuted for breaches under the duties required under clauses 28 and 29. Another question was: can you confirm that a volunteer cannot be prosecuted for a breach of officer duties under the Work Health and Safety Act? The answer was:

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.

It is quite clear from Safe Work Australia's website, SafeWork SA's website, and even from crown law's advice, that volunteers can be prosecuted for breaches of duties required under clauses 28 and 29. This is contrary to the minister's assertion that, essentially, volunteers would only be charged for breaches if they caused injury or death through reckless or negligent behaviour. That is what he said publicly on ABC and FIVEaa: volunteers have got nothing to worry about. It is only in the grossest circumstances; that is, it is only if a volunteer has caused injury or death through reckless or negligent behaviour that they would be prosecuted. They are comforting words for volunteers because they are going to say, 'Okay if I'm going about my normal business and I make a mistake or I breach something here or there, but I haven't been reckless or negligent and caused injury or death'. Most volunteers would not assume that they would be doing that.

They were comforting words from the minister, but those words were wrong, they were untrue. They bore no resemblance to what will apply to volunteers in the bill we are being asked to pass. That is in essence what Ralph Bonig, the former president of the Law Society, was saying in a number of articles and in a number of interviews that he conducted. He has no political axe to grind; he just represented—as the name suggests—the lawyers in South Australia on this particular issue. I have quoted before the concerns he expressed in relation to the impact on volunteers. Further legal advice that I have been provided with is as follows:

Volunteers do not have duties under the current act and therefore cannot as a matter of law be subject to prosecution for breach of an OHS responsibility. Under the proposed work health and safety laws, a volunteer will be a worker under the laws and, as such, have the duties set out in clause 28 of the WHS bill. Those duties require that a worker, including a volunteer, take reasonable care for his or her own health and safety, take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons—

so that is anybody else—

and complies so far as the worker is reasonably able with any reasonable instruction as given by the person conducting the business or undertaking to allow the person to comply with this act and cooperate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

The legal advice concludes to me that nowhere in the WHS bill does it say that a volunteer would only be prosecuted if they cause injury through reckless or negligent behaviour. That is the legal advice to me. The Crown Law advice to the government says, in essence, the same thing. Safe Work Australia and SafeWork SA say the same thing, yet the minister stands up whenever he is interviewed and says, 'Don't worry, volunteers, the only time you'll be prosecuted is if you cause injury or death through reckless or negligent behaviour.' I again ask the minister how he justifies making those statements when they bear no resemblance to the facts or to the bill that we are being asked to support.

The Hon. R.P. WORTLEY: I think I clarified this before the break, but I will just say it one more time. The context in which I made it clear that volunteers could not be prosecuted for issues under the Work Health and Safety Act is in volunteer organisations that have 100 per cent volunteers and do not employ people. They have now been excluded from the act. They cannot be prosecuted for any reason because they are no longer part of the act. Volunteer organisations have been asking for years for something like that to happen. We have done it. They have had all their legal advice and they are very supportive of this bill.

Under the current law, it is unlikely that a volunteer would ever be prosecuted under occupational health and safety laws unless their actions were reckless or negligent. Under the new law, it is unlikely that a volunteer would ever be prosecuted under work health and safety laws unless their actions were reckless and negligent. If a volunteer gets prosecuted as a worker, they have to have done something serious—either caused a death or an injury.

A volunteer is classed as a worker under a volunteer organisation that employs somebody, so they are a PCBU. So once again the member is misleading the chamber. He is deliberately misleading people in this chamber in the desperate hope that he will be able to change the voting patterns in this room. I think he should be ashamed of himself.

I can remember the time when he was on the radio, and there was also the Hon. Mr Robert Brokenshire, out there screaming out that volunteers are all going to be prosecuted, they will lose their homes, they will do all sorts of things. It was absolute nonsense. One hundred per cent volunteer organisations are now excluded. In any volunteer organisations that employ somebody, the volunteers will have obligations as workers under the act, just as it is now. There is no change.

The Hon. R.I. LUCAS: The minister lives in a delusional world. I challenge the minister at any stage to find any statement where I have indicated that volunteers would lose their houses, and I know he will not be able to find any such statement. The difference between his assertions and mine is that I can directly quote, and have done, from what the minister said on FIVEaa and ABC radio. The minister cannot refer to direct quotes because he just makes these things up.

Secondly, the minister, in addition to making things up, is also unable to provide any evidence for his assertion that a volunteer will not be prosecuted unless they have been negligent or reckless. I challenged him by way of interjection and I do so again to show me anywhere in the legislation where it says that.

The Hon. T.J. Stephens: Which section?

The Hon. R.I. LUCAS: There is no section. I challenge the minister: show me the section where it says a volunteer will not be prosecuted unless there is reckless or negligent behaviour.

The Hon. R.P. WORTLEY: Under the act, it is a duty of a worker to take reasonable care of not only himself but others. I know Mr Lucas has problems connecting the dots, but the logical conclusion of that is, if a worker caused the death of somebody through neglect or negligence, they would be liable for prosecution; that is the current law at the moment. I will state this: I do not think it has ever happened. It has never happened and I doubt it ever will happen, but it is in the act.

The Hon. R.I. LUCAS: The minister and his response are a joke. Can I interpret from that that, given the minister is saying that a volunteer is a worker and therefore cannot be prosecuted unless they are reckless or negligent, the minister is saying the same thing to all workers in worksites; that is, no worker is going to be prosecuted unless they are reckless or negligent?

The Hon. R.P. WORTLEY: Prosecutions would also be considered in the broader public context. An assessment would be made as to whether it is in the public interest to prosecute a volunteer.

The Hon. R.I. Lucas: No, I am asking about a worker.

The Hon. R.P. WORTLEY: A volunteer—

The Hon. R.I. Lucas: No, a worker.

The Hon. R.P. WORTLEY: We are talking about volunteers.

The Hon. R.I. Lucas: You said a volunteer is a worker.

The Hon. R.P. WORTLEY: A volunteer is a worker. If they are working for a volunteer organisation that employs a person, they are classed as workers.

The Hon. R.I. LUCAS: Yes, and that is exactly the point that I am making. The minister is saying a volunteer is a worker, and he is saying that volunteers will not be prosecuted unless they have reckless or negligent behaviour which results in death or injury. His argument, therefore, is the same for workers; that is, workers will not be prosecuted unless they cause death or injury through reckless or negligent behaviour.

Now, that is just nonsensical. That is the minister's argument stripped bare for all to see and it is a terrible sight. The minister is saying a volunteer is a worker; volunteers will not be prosecuted unless they cause death or injury by reckless or negligent behaviour; workers, therefore, will be in exactly the same position; they will not be prosecuted unless they cause death or injury through reckless or negligent behaviour.

It is a nonsense. The act makes it clear that workers can be prosecuted for breaches of duties required under sections 28 and 29, and volunteers are workers and they can also be prosecuted. There is nothing in the legislation which says volunteers can only be prosecuted for causing death or injury through reckless or negligent behaviour. The minister really has nowhere to go in relation to that. He is just not going to acknowledge, in essence, that what he has been saying publicly and again in this council is untrue and is not a reflection of what the legislation requires. He knows that. The advice he has been given indicates that that is the case as well.

I ask the minister, in relation to these definitions of volunteer associations: is it correct that under the government's legislation a suburban football club which is almost 100 per cent comprised of volunteers but employs a groundsperson for three hours a week to look after the football club grounds is not a volunteer association under the terms of the minister's bill?

The Hon. R.P. WORTLEY: That is quite obvious. That is exactly what it says. The honourable member is trying to act like he has found something untoward. The fact is, it has always been that way. A volunteer organisation, under this legislation, who employs anybody becomes a PCBU.

The Hon. R.I. LUCAS: That is not correct because a PCBU has only been introduced under the new act. It has never been always the case because a PCBU has only been introduced under the terms of this particular legislation. The minister was saying earlier, 'Hey, all of these volunteer associations are not going to be covered by the legislation', but the reality is, as anybody who has been associated with a volunteer group such as a football club or a netball club would know, they are virtually 100 per cent comprised of volunteers, they do not have any full-time executive officers but most of them, or many of them, employ either a coach part time to coach their elite groups or part-time grounds staff to look after the grounds, or they may well employ part-time bar staff for two or three hours on a Saturday afternoon if it is a football game, or netball, or whatever it might happen to be.

Under the government's legislation all of those volunteer associations, as I would call it, are no longer volunteer associations. They will be bound up by the legislation and the volunteers will be caught up by the requirements because they will be classified as a person conducting a business or an undertaking. When we come to the discussion about what a PCBU is, this is one of the major changes in the legislation. The existing act talks about employers, employees and businesses and the new legislation talks about undertakings. I will quote the advice of Dick Whitington QC in relation to that: an undertaking is clearly a much broader concept than a business in the traditional sense that we would all know a business to be. An undertaking is clearly much wider than that.

So, what we are going to have, and the legal advice provided to me, and I highlighted some of this in the second reading, is that if you look at the football club which is virtually 100 per cent comprised of volunteers, they have employed a coach for three hours a week to coach their elite team and that is the only paid employee they have, they lose the volunteer association exemption under the legislation and they are therefore 100 per cent incorporated within the terms of the Work Health and Safety Bill. So, all the volunteers are caught up.

If a volunteer, under the government's legislation, breaks a leg as a result of fluid being spilt on the club room floors or falls into a pothole or however it might occur through some sort of safety breach, then if a volunteer can be shown to have been guilty under the provisions of sections 28 or 29 where you are required to take reasonable care not to adversely affect the health and safety of another person (a volunteer in this case), they can be prosecuted under the terms of the new work health safety legislation.

The legal advice provided to me is that in exactly those circumstances under a football club arrangement under the existing act, that volunteer cannot be prosecuted. Contrary to the minister's assurances that volunteers will only be prosecuted under the new legislation if they could be prosecuted under the existing act, the legal advice provided to the Liberal Party is that that claim, again, is untrue, that in those circumstances I have outlined a volunteer could be prosecuted for a breach of duty under section 28 of the Work Health Safety Bill when they could not be prosecuted under the existing provisions of the occupational health and safety act. My question to the minister is: does the minister concede in the circumstances that I have outlined that a volunteer could be prosecuted?

The Hon. R.P. WORTLEY: What a lot of nonsense you speak. If a volunteer is working for a volunteer organisation that employs somebody and they spill something on the floor by accident—where are you coming from? What goes on in your head? I just cannot fathom it. If an employee spilt something and deliberately through negligence, they may have to be examined first. They could be in trouble; of course they could.

To say that if a worker spills something and someone injures themselves they are going to be prosecuted is absolute nonsense. Under the current laws a volunteer can be prosecuted, but there has not been a prosecution ever. There has never been a prosecution. I would expect that to be the same under the new work health and safety laws.

Under the current law, for the purposes of the act, where a person in connection with a trade or business carried on by the employer performs work for an employer gratuitously, the person will be taken to be employed by the employer. That is what happens now. Unfortunately we are going to have to put up with this clause by clause, and I must apologise to everyone here for having to listen to nonsense from the other side. I think I have explained it quite clearly. The employer associations, after looking at this meticulously and getting legal advice, unanimously support this legislation. It is just unfortunate—

Members interjecting:

The Hon. R.P. WORTLEY: Volunteer organisations—

An honourable member interjecting:

The Hon. R.P. WORTLEY: Well, I am sorry—volunteer organisations unanimously support this legislation. So, when the volunteer organisations have supported it, why would anyone in this chamber take the word of the person opposite who really should be ashamed of himself and the way he has misled and misrepresented this legislation for volunteers themselves? I think I have answered as much I can. That will be the last time I speak in regard to that issue.

The Hon. B.V. FINNIGAN: Regarding subsection (8) of this clause and the definition of 'volunteer association', the way it is worded is that essentially a volunteer association will not come under the act if none of the volunteers alone or jointly employ any person to carry out work. In a situation where it may be that people who are employed by the organisation who are doing the employing, I assume that then they will be considered a person conducting a business or undertaking in the other clauses. In a sense I am asking that there is not a situation there where if volunteers employ people, then it comes under the act but if paid people employ people in the voluntary association that would mean that they were not covered by the act.

The Hon. R.P. WORTLEY: I will get some advice for the honourable member.

The Hon. T.A. FRANKS: While the advice is being obtained, I would like to put on record the Greens' position specifically on the amendment before us. As I understand it, it inserts the definition of 'volunteer association', which means 'a group of volunteers working together for one or more community purposes;' whereas the current definition actually continues that sentence with 'whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association'. Can I clarify with the mover that the intention is to truncate that sentence and remove 'employs any person to carry out work for the volunteer association'.

The Hon. R.I. LUCAS: Yes.

The Hon. T.A. FRANKS: It will come as no surprise to the Hon. Mr Lucas that the Greens will then oppose this amendment, and we do so having consulted with Volunteering SA and NT. Certainly, I have in writing from the CEO a media release and also an email sent to us on 13 March 2012, after we had met with that organisation, their statement on this, that new WHS laws will increase protections for volunteers in South Australia; certainly, the headline indicates that they support this.

They go on to note that there has been a number of inquiries and concerns from both volunteers and organisations who rely on volunteers, but they actually welcome the following changes and note:

There were some negotiated changes specifically that volunteer associations, whether they be incorporated or unincorporated, which are wholly made up of volunteers working for a community purpose, where none of the volunteers employ any workers, will not fall within the scope of the WHS law. Therefore, volunteer directors, officers and workers of these associations cannot be prosecuted under the model WHS laws.

However, it goes on to say:

If a volunteer association, incorporated or unincorporated, employs any person to carry out work for the association, that association will owe health and safety duties to workers, including volunteers. A volunteer director/officer cannot be prosecuted for failing to comply with their officer duties under the WHS laws. This immunity from prosecution is designed to ensure that voluntary participation at the officer level is not discouraged.

A volunteer officer can, however, be prosecuted in their capacity as a worker if they fail to meet their duties as a worker to take reasonable care.

They note that Safe Work Australia's guidance notes, dedicated website, email and telephone helpline (called the 'volunteer assistance line') enable volunteers and representatives of volunteer organisations to ask questions they may have about how they will be affected by the new WHS laws, and they also commend that further practical and executive resources are needed. I understand that they have been working closely with not only Safe Work Australia but also SafeWork SA on this.

I have understood from my conversations with the CEO that in fact they did seek their own independent legal advice and that they are quite confident with that advice and quite comfortable with this bill and certainly welcome it. They note that volunteers who are workers under the new WHS laws have a duty to take reasonable care. This is the case for all workers and visitors to a workplace, that the new work, health and safety laws do not apply to every volunteer activity like some of those mentioned in the debate. For example, they note that it would not apply to all sporting, social, domestic and recreational activities.

They also welcome that the new WHS laws will mean that volunteers will receive the highest level of protection whenever they carry out their work. They also note that there are about 6.4 million volunteers in Australia overall and that the Productivity Commission has estimated that, of around 600,000 not-for-profit organisations, only 60,000 employ staff, so it is clearly quite a small proportion that this affects over the whole volunteering industry. They conclude with:

A volunteer officer cannot be prosecuted for failure to comply with their officer duties under WHS laws. The immunity from prosecution is designed to ensure that voluntary participation at the officer level is not discouraged.

However, I would note that the media release of David Pisoni, issued on 13 February 2012, headlined 'Parents on school councils now risk their house' probably did serve to discourage some volunteers from taking on those important roles in school governing councils. I certainly do not attribute that media release to the Hon. Rob Lucas, but I do note that it was in fact the shadow minister for education who issued that release, so I would have thought he would be aware of it.

I note that there is also quite a lot of information on the Safe Work Australia website which acknowledges that volunteers can be prosecuted under the act in certain situations but also clarifies that a volunteer officer cannot. Volunteers will not only be able to be prosecuted by this particular act when it comes into law but, of course, they will be protected, and that is why, overwhelmingly, volunteers have welcomed this bill. With that, I note again, that the Greens will be opposing this amendment, and we look forward to the further passage of future clauses.

The Hon. R.P. WORTLEY: I would like to thank the honourable member for her quite valuable contribution to this debate on volunteers. In answer to the Hon. Mr Finnigan, there is no loophole.

The Hon. R.I. LUCAS: In concluding my contribution on this amendment, I want to reject claims made by the minister in the second reading in relation to this package of amendments and let me quote, again, the minister. As I said, I rely on actual quotes of the minister, I do not make them up and attribute them to me when clearly they were not made by me, and I thank the Hon. Ms Franks for highlighting that. The minister said, and I quote directly:

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.

That is, again, untrue. The package of amendments that I have filed, the first of which has just been moved, do not have that implication or effect on volunteers for organisations such as The Salvation Army and Red Cross because they would not be volunteer associations under the package of amendments that I have moved. I wanted to place on the record that another claim made by the minister, which I know he has provided to other members and to representatives of volunteer associations etc., is untrue. I have taken legal advice on that issue and that has confirmed that it is untrue.

I again conclude by indicating that in all cases in relation to this I have not resorted to making up statements: I have quoted the minister's own statements, which he has not challenged; I have quoted the Safe Work Australia website; the SafeWork SA website; the minister's own legal advice which he quoted in the second reading; and the legal advice provided to me, which all make it clear that the minister's statements are untrue.

The committee divided on the amendment:

AYES (7)
Brokenshire, R.L. Dawkins, J.S.L. Lensink, J.M.A.
Lucas, R.I. (teller) Ridgway, D.W. Stephens, T.J.
Wade, S.G.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Hunter, I.K. Maher, K.J. Parnell, M.
Wortley, R.P. (teller) Zollo, C.
PAIRS (6)
Lee, J.S. Vincent, K.L.
Hood, D.G.E. Kandelaars, G.A.
Bressington, A. Gago, G.E.

Majority of 1 for the noes.

Amendment thus negatived.

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

Page 17, lines 33 and 34—Delete the definitions of WHS entry permit and WHS entry permit holder

This raises for the first time in the committee stage the critical issue which I am sure will fire up the Labor members and their supporters in the chamber, which is to provide for union right of entry into work sites. If anything is going to fire up your colleagues on the backbench, Mr Chairman, indeed this should.

South Australia and, I think, Tasmania—I think there is one other jurisdiction—have fought for many years to have a point of difference in terms of our industrial relations and our worksites in South Australia. That has been that, unlike the Eastern States and other jurisdictions, unions have not had an automatic right of entry onto worksites on occupational health and safety grounds.

I think all members have been lobbied on this issue—other than the government members—so the Liberal Party members and the minor party and Independent members will have been lobbied and lobbied strongly, in particular by the construction industry in South Australia in relation to these particular provisions.

The reason why is that they meet on a regular basis with their colleagues, in particular in the Eastern States, and they are informed on a regular basis of the activities of union officials and representatives, ostensibly on the grounds of occupational health and safety, of entering worksites and causing industrial disruption on those worksites.

I know I continue to pick on the minister but he is such an easy target for me to quote back what he says publicly and compare it with the facts. The minister, in defending the indefensible on this position, again in the public arena, makes untrue claims. Let me just highlight one on FIVEaa. When he was asked about union right of entry he said:

So there are protections there but there's no evidence anywhere in the country to show that this right has been abused.

An extraordinary claim from an extraordinary minister—no evidence anywhere in Australia to show that right of entry by union leaders and representatives has been abused. That has been the minister's position and the government's position. I suspect that in the privacy of the smoke-filled rooms of the Labor Party (if they are still smoke-filled) even they would not make that claim—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: —and I think the Hon. Mr Maher would acknowledge that. In his inaugural contribution today he stoutly defended, as you would expect him to, the union movement but he conceded that, as with any occupation (I suspect even including the occupation he has now joined) there are people who do not behave themselves or who bring no glory to the occupation of being a member of parliament or, indeed, the occupation of being a union leader or representative.

The Hon. J.S.L. Dawkins: He has just made his inaugural interjection.

The Hon. R.I. LUCAS: That's very good. So even the Hon. Mr Maher acknowledged the reality. However, the reality the Hon. Mr Maher indicates is not the reality according to the minister; the minister will not even concede that. He says—and wherever he was going this is what he was saying—'There's no evidence anywhere in the country to show that union right of entry has been abused.'

Let me put on the public record some examples around the country. I hasten to add that I join with a fellow product of Mount Gambier in the South-East in acknowledging that the majority of unions and union leaders are there representing workers as they should. My father proudly represented the Printing & Kindred Industries Union and I acknowledge his work before me and the work of many other union leaders and representatives. However, as the Hon. Mr Maher has conceded, and as I am about to demonstrate, there are some bad eggs, in particular in the construction industry in terms of their potential impact on the construction industry.

Let me quote from the Cole royal commission—nothing less than a royal commission into this particular area. The royal commission noted:

Occupational health and safety is often misused by unions as an industrial tool. This trivialises safety and deflects attention away from real problems. The scope for misuse of safety must be reduced and, if possible, eliminated.

Many participants who gave evidence to that royal commission noted:

Safety matters are frequently raised by union officials whenever an industrial issue arises on a site. When the industrial relations processes have been exhausted in trying to resolve a dispute, safety issues are raised by the union.

One reason for this, it was suggested, is that safety stoppages provide paid strike time whereas industrial strikes do not. One participant noted:

It is not uncommon for a builder or a subcontractor who is in dispute with a union over an unrelated industrial issue to receive visits from union officials investigating and finding alleged safety breaches. The union official asserts that immediate risk exists, work ceases while employees sit in the sheds or, worse, leave the site.

Yet another participant in the Cole royal commission commented that safety issues would often evaporate when other industrial issues were resolved. There are many other examples given to the Cole royal commission. As I said, this is not a fly-by-night inquiry or investigation. It was a properly constituted royal commission into the activities of the construction unions in the construction industry highlighting the abuses of OH&S laws to settle industrial relations disputes in those work sites.

Recent evidence in relation to a major construction dispute in Queensland under the new laws demonstrates further the problems that exist for the construction industry. For one major builder in Queensland involved in a recent dispute, the key union on that site had a particular problem with an existing enterprise agreement. It still had two years to run, so it was a legal contract, an enterprise agreement between the union and the builder. For whatever reasons, the leadership of the union took strong exception to one of the provisions which had been previously agreed within that enterprise agreement and sought to have that particular aspect of the agreement changed. The builder refused on the ground they had a legally binding enterprise agreement which still had another two years to last.

What occurred then was that on one particular day the union representatives came into that work site, on four separate occasions during the one day, on the pretext of four separate or different occupational health and safety issues, to disrupt the operations of the business, all the while maintaining pressure on the builder to give ground on amending the enterprise agreement. That intimidation, that misuse of the OH&S powers, continued for a significant period of time, resulting in industrial disruption to the builder and that building project.

There are similar stories, for those who follow proceedings, such as the Grocon proceedings in Victoria, where the Fair Work Building and Construction inspectorate took proceedings against the CFMEU and 10 individuals in relation to their activities during the Grocon dispute. One union representative said to one of the builders, 'We'll just smash them.' They were going to smash all of them all the time. 'I'll be back with a barbecue,' said another one. 'I hope you die from your cancer,' said another one to a manager. The details of the ongoing disruption and disputation, the numbers of people preventing, hindering or interfering with free access to that building site, the abuses of processes, the name-calling, etc., are all documented in documentation which is publicly available.

I have about 12 pages of it here, but I am not going to read those and delay the committee stage of the debate with all that detail. However, it is another example of the concerns that the MBA and the construction industry in South Australia, in particular, have about the introduction of the union right of entry to worksites in South Australia.

The amendments I am moving do allow union right of entry, contrary to what the government and others have maintained, but it would be on the basis, first, that if the workers wanted to be represented by the union, they could elect to become members of the union and elect a union representative as their health and safety representative. Of course, if they do not and would prefer to do it themselves it is our view that they should be entitled to do that.

Equally, if they want to choose a union member to be their health and safety representative they are entitled to do so. We support that free will and choice by workers on the worksite. However, if they choose not to have a union representative come in and cause grief on the worksite then, in our view, they should be entitled to make that choice. This is the first instance, where we make it quite clear that if the workers want a union representative to represent them they can do so.

As you know, Mr Acting Chair, under this legislation the health and safety representative is extraordinarily powerful; he or she has the capacity to shut down the worksite if there is any danger to a worker, and, of course, under the legislation workers can also refuse to work, as indeed they should be able to. The health and safety representative has the power to shut down the worksite, or that particular part of the worksite, if there is danger to the workers, and if the workers decide they want a union representative to be the health and safety representative that is terrific, they can do so.

The second example—where, again, we are quite comfortable if the workers should decide to—is that there is the capacity of the health and safety rep to bring in what is known as a consultant to assist. If the workers, through their health and safety rep, want to bring in a union representative as the extra set of eyes, the safety net or the protection, as long as that union representative has the appropriate accreditation approvals under legislation, which is to be understood, then, under the package that we are quite happy to support, the workers are entitled to bring in a union representative to assist them.

So our position is quite clear. Workers are entitled to be represented by unions if they choose. The decision should be the workers'. Let us not hear any of this cant or hypocrisy that the Liberal Party is saying keep the unions out, full stop; that is not the position we are adopting. We are saying let the workers decide, let the workers choose, first, whether they want a union representative to be their health and safety representative—or whether they want to be a member of a union in the first instance—and, secondly, if, in circumstances such as a difficult issue with a difficult employer, they want to bring in a properly accredited and approved union representative as their consultant, they can do so.

We are prepared to support that package of arrangements, but what we are saying is that, where there is, for example, a small worksite of 20 people and those 20 people say that they do not want the union involved—and believe it or not, minister, and your colleagues, there are some people who do not like unions; there are some who say they do not want a union representing them—in our view they should be entitled to say that if they choose.

However, what the government and those who support the government are saying, and what this package of amendments is going to do, is that, even if all 20 workers feel strongly that they do not want to have anything to do with the union, if a union claims to have coverage of that particular worksite, even if those 20 do not want it, it can have automatic right of entry onto that worksite. That is what the government is saying. That is what those who support the government are saying.

So, you have got 20 workers who say, 'We don't want anything to do with the union. We're quite happy with the way we handle work, health and safety and how our employer is treating us,' but the CFMEU, or whatever the union happens to be, says that it has coverage of that particular work site—or there may well be a couple that claim coverage. As the minister would know, on some work sites a number of unions would claim coverage; and the industrial advice provided to me is that there are a number of examples where unions claim coverage of the same work site and have their own arguments about who should have coverage.

However, in the case that I have outlined, a union or unions, contrary to the wishes of everyone of those workers in that work site and the employer, can have automatic right of entry under the provisions of the legislation with some minor amendments that might be moved on behalf of the Hon. Mr Darley. It is for those reasons that the construction industry associations in South Australia are saying, 'Why are we doing this?'

We have prided ourselves in South Australia on having a better industrial relations record than the Eastern States in particular, and that has occurred under both Liberal and Labor governments, I might say. When one looks at the working days lost under Liberal and Labor governments in South Australia compared to the Eastern States, we do proportionally much better than those other states.

Why is it that we need to move down this path, particularly in the construction industry, which on occasions can be a tinderbox because of pressure of deadlines, huge contracts, time delays, the importance of industrial action on the profitability of companies, and those sorts of things, which make it, obviously in industrial terms, a controversial area, if I can understate the case? Why is it that we are going down this particular path in South Australia?

It is the Liberal Party's view that we would be well advised to stick with what has been working in South Australia. We maintain our point of difference—as I said, I think that Tasmania also has that point of difference, or did have that point difference—in South Australia. For the life of me we cannot understand why we are in the circumstance where, in the circumstances that I have outlined where they have decided they do not want a union, the workers should be forced to have a union intervene in those circumstances.

At the very least the government ought to look at a set of circumstances where at least there was a member of a union on a particular work site to justify intervention by a union representative. Even that, as I understand it from the discussions the Hon. Mr Darley has had with the government negotiators and others, is not acceptable to the government in relation to this package of amendments. For those reasons, I move the amendment standing in the Liberal Party's name.

The Hon. R.P. WORTLEY: We oppose the amendment, and the reason is because this and the future amendments are purely driven by the pathological hatred of unions by the members on the opposite side. By the honourable member's own admission we have a very good industrial record here in this state with very few lost days as a result of industrial disputation, yet our unions have the right of entry to look at industrial issues.

They have a good relationship with their employers. There are very few days lost. Unions can enter a work site where they have eligible members for industrial issues, yet there is no evidence here, by the admission of the Hon. Mr Lucas, that that is being abused. We do not believe that that right will be abused when a work health and safety permit holder goes to a job at the request of an eligible member.

There will be a few changes to these clauses, through the Hon. Mr Darley, but this government would not stand for abuse of this section of the act. We support this section of the act strongly; we believe that unions have the right. In every other jurisdiction in the country, they have the right to enter a workplace for occupational health and safety reasons. We do not believe that workers in this state should have any fewer rights than those which apply in other states. To members of the committee I say, 'Please do not be fooled by the concern of the Hon. Mr Lucas for those poor old non-union people or whoever who do not want to be members. The fact is, though—

The Hon. R.I. Lucas: Bugger them; don't worry about them.

The Hon. R.P. WORTLEY: We do. We want them to be safe.

The Hon. R.I. Lucas: No you don't; you hate them.

The Hon. R.P. WORTLEY: We want them to be safe—

The Hon. R.I. Lucas: You hate them.

The Hon. R.P. WORTLEY: —you don't. By this amendment, the Hon. Mr Lucas wants to deny a large section of workers the right to call on an entry permit holder. They are specially trained; that is their job. They are skilled people who can identify and work through safety issues. If they abuse this right, there are provisions in the bill for the Industrial Relations Commission to take away their permit, and this government will take a very hard line on unions which abuse this right. We do not believe that it will be abused, mainly because the unions do not abuse their industrial right of entry. I ask the committee to oppose this amendment.

The Hon. B.V. FINNIGAN: My comments, I guess, like those of other honourable members, will be broadly about the issue of union officials having right of entry. I am sure that other honourable members remember a federal election (I think it was in 1993) where, as I recall, the Housing Industry Association or the Master Builders Association ran a very strong campaign in marginal seats saying that Labor was going to vastly increase the cost of a house and allow union thugs to ride roughshod over home improvements and house building.

There was a very famous leaflet, which I am pretty sure went out in some South Australian electorates and which had some beefy blokes in shorts and blue singlets saying 'We're here to build the barbeque.' The leaflet was designed to suggest that this union thuggery would be coming to your backyard any day under a Labor government. So, this notion of a bogeyman of union thugs, particularly in the building construction industry, is nothing new and we should not be surprised that it is being agitated with this bill.

Of course, we currently have the Australian Building and Construction Commission; I think it has a new name now. Against the wishes of many members of the Labor Party, it has continued under the federal government. It looks precisely at problems within the building industry which tend to be in large work sites.

The current powers for health and safety representatives are extensive. The Hon. Mr Lucas alluded to HSRs being able to do all sorts of things and their having wide powers. They already have those; that network is already in place and those powers are in place under the current act. Of course, there is no obligation on health and safety representatives to be union members or to be approved by the union or by union members. It would be a matter for the workers at a particular site whether they want the union to be part of the HSR process, in a sense.

There are certainly some health and safety representatives who identify as union members. Sometimes their union activity and their duties as a health and safety representative coexist—they are active as a union delegate or union member, as well as being a health and safety representative. But there are plenty of health and safety representatives who are not union members and who have no communication or contact with the union and in no way represent the union.

Secondly, there is no compulsion for workers to join a union or to have a union represent them. Contrary to what the Hon. Mr Lucas has said, this notion that union officials are going to come sweeping into workplaces and make the workers accept their representation is simply not correct.

Under these provisions, union officials will have a right of entry in relation to occupational health and safety matters. That right of entry is exercised under fairly stringent conditions, including things like a 24-hour minimum notice period, and so on, and it is very similar to the sorts of provisions that already exist in relation to permits under the Fair Work Act to enter workplaces.

It is important that union officials, who are generally widely experienced and knowledgeable about health and safety matters—and many of them may have worked for decades in the field—have the ability to enter workplaces on health and safety issues to inspect what is going on and to talk to the workers. If the workers are not interested in talking to the union representative or want to exclude the union from the workplace, this bill does not give the union official any powers to make them join the union or accept representation or whatever. That would be a matter for those particular workers.

I am pretty sure that most union officials do not devote a great deal of their time to representing non-members because it is the members who pay their dues for their representation and advocacy. Members would not be too happy if union officials instead spent their time going around sites where they did not have members. It is very unlikely that a union official is going to devote large amounts of their time to visiting non-members. Nonetheless, it is important that they have the ability to enter workplaces because there will be occasions when they are aware of health and safety problems and they want to be able to see for themselves and talk to people about what is going on.

Sometimes anonymity is very important in that regard because not every worker is going to want to jump up and down or will feel comfortable saying, 'Well, hey, I think there's a health and safety breach going on here,' particularly if it is a non-union workplace where an employer has a hostile attitude to unions, or where being an active union member may have repercussions and so the workers are silent members of their union. This is certainly a minority of workplaces, but it is important on occasion that a union official, in my view, should be able to enter that workplace without the worker having to identify that they are the one who has suggested that there is a health and safety problem that needs to be checked out.

The powers that this bill gives union officials are not much different from those they already have under the Fair Work provisions. There are very stringent conditions on how they exercise the permits. There are significant penalties for breaches. There is the ability for employers or anyone else to challenge the permit or to suggest that that person has been in breach of the provisions. There is no obligation or compulsion for workers to be represented by unions or to have a union present on the work site as a regular representative of them. All this does is give the official the ability to enter a workplace under the conditions, which are quite strict, within the act.

If none of the workers there wants the union involved, it is nonetheless important that an official be able to establish whether or not there is a health and safety problem there because that is something that is going to be of concern broadly. This is so even if it is a workplace, such as in the Hon. Mr Lucas's example, where there are 20 people and they are all virulently non-union and do not want a union official to have any part.

We know that no workplace is an island so, even though one workplace may have no union members at all and no-one wanting to join a union, if there are practices going on that compromise safety in a way that might be of great financial advantage to an employer, obviously a union is going to be concerned about those practices and will want to make sure that they are not taken up in other workplaces as well as in that individual workplace. It is important that a union official is able to look at different workplaces across their particular industry and ensure that illegitimate practices or unsafe practices are not creeping in in particular areas.

This notion that union heavies are going to be gallivanting around workplaces, disrupting work and grinding the economy to a halt and so on, I think, is pretty fanciful. These are sensible provisions with important safeguards. They are simply aimed at ensuring that we have safe workplaces across the board as much as possible.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to oppose this amendment in the name of the Hon. Mr Lucas. I do so because right of entry is an important feature of the nationally harmonised legislation, extending the opportunity for effective representation on workplace safety. In fact, union right of entry for occupational health and safety purposes has been in place in every other state and territory for many years. Certainly, in Tasmania, it has actually been in place since 2009, after a trail which was commenced in 2007.

So, every other state and territory have actually had these provisions for a significant period of time. When we are talking about harmonisations, this was one of the wins for South Australia, to increase our protections. The right of entry provisions contained in the Work Health and Safety Bill are actually consistent with the current right of entry provisions for industrial relations purposes under the commonwealth Fair Work Act 2009.

So, unions can already enter worksites for industrial relations reasons. It only makes sense to extend this to extend this to occupational health and safety reasons. Certainly, permitting another set of eyes—an experienced, trained and independent set of eyes—is a great reference point to assist not only workers but also businesses to meet their safety obligations.

Workers may or may not choose to join a union. Certainly, I do not think that is what the work health and safety provision of right of entry would be about. I doubt it would be a recruiting exercise. I imagine it would only be used to ensure that proper processes around work health and safety are actually being followed. I say that because there are actually provisions in this bill which are quite stringent.

According to the bill, before exercising a right of entry, a union official must have undergone the prescribed training and they must have a permit issued by the authorising authority (which, in this state, would be the Industrial Relations Commission of South Australia). Also, there are protections in place for the misuse of right of entry provisions, and disputes can be referred to an inspector or the authorising authority.

Contravention of the permit holder's permit conditions, improper behaviour and misuse of right of entry provisions would all likely result in the revocation of a work health and safety entry permit. It should not be regarded as a threat, but certainly as a positive and proactive safety measure, not only ensuring that workers are in safer environments but also assisting businesses to meet those obligations.

I would have thought it would have been welcomed as something that does work across the country. The Greens are disappointed that we will probably lose the strength of this particular provision, and we look forward to further debates on those clauses, with further amendments to be moved in this area.

On a final note, I will say that the Greens have been quite critical of the Cole royal commission, the ABCC, and the terms of reference of that particular royal commission. We do not subscribe to some of the assertions made about occupational health and safety being used as an industrial tool. We think that the provisions in this work health and safety permit legislation and the protections around that would ensure that that would not happen.

The Hon. R.I. LUCAS: One further comment I want to put on the record was regarding some advice provided in the last couple of weeks by one of the industry associations which highlighted the circumstances in New South Wales. An OHS alert entitled, 'Union inspectors to target New South Wales sites in response to WorkCover changes', stated:

The CFMEU Forestry and Furnishing Products Division will conduct comprehensive safety inspections of major New South Wales worksites in response to what it calls the state government's decision to smash the rights of sick and injured workers.

I will not read all of the article, but it goes on to highlight that, because the unions took a position in political opposition to the government's decision in relation to legislation that went through the parliament, they were going to institute what they called in a nicely understated fashion comprehensive safety inspections of every major worksite and workplace in New South Wales as a result of that. Indeed, the advice from the construction industry is that they have commenced that particular process. I just highlight that I quoted Queensland, Victoria and New South Wales as well. I did have some information on Western Australia in terms of support for the proposition that I have moved, but I will leave that for the moment.

The committee divided on the amendment:

AYES (7)
Brokenshire, R.L. Dawkins, J.S.L. Lensink, J.M.A.
Lucas, R.I. (teller) Ridgway, D.W. Stephens, T.J.
Wade, S.G.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. (teller)
PAIRS (6)
Lee, J.S. Vincent, K.L.
Hood, D.G.E. Zollo, C.
Bressington, A. Hunter, I.K.

Majority of 1 for the noes.

Amendment thus negatived.

The Hon. R.I. LUCAS: Could I ask the minister, based on his advice, on which particular clause, other than this one, would it be appropriate to ask questions in relation to the requirements on home duty; that is, a worker who spends part of their working day in their own home working? Can the minister just indicate, based on advice, on which particular clause—other than the definitional clauses which cover everything, obviously—would it be appropriate to put questions to the minister on that issue?

The Hon. R.P. WORTLEY: Clause 8.

Clause passed.

Clause 5.

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

Page 18, lines 21 to 26—Delete subclauses (7) and (8) and substitute:

(7) A volunteer association does not conduct a business or undertaking for the purposes of this Act except to the extent (if any) that it employs a person to carry out work for the volunteer association (and, in such a case, a volunteer will not be taken to be a worker carrying out work for the purposes of the business or undertaking).

It is part of the package of amendments on volunteers. I do not propose to speak on the issue.

Amendment negatived.

The Hon. R.I. LUCAS: I have some questions. Under clause 5 is the introduction of, I guess, the controversial new element of the legislation in South Australia and a lot of other states, which is the notion of a person conducting a business or undertaking. As I said in the second reading and at the outset of the debate at the committee stage, the old notions under the Occupational Health and Safety Act of an employer and an employee and a business or a trade have been changed to this new notion of a person conducting a business or undertaking.

All of the legal advice that has been provided on this issue by a number of lawyers but, in particular, by Dick Whitington QC, says that one of the advantages of the existing law in South Australia, and one of the reasons why we have sought to amend the legislation back to the existing law, is that there are years and years of industrial precedents and court decisions in relation to what the various terms in the legislation mean. What Dick Whitington QC is saying to anyone who is prepared to look at his advice is that we are entering a whole new world in South Australia, in that it will take years and years of industrial decisions to understand the full implications of the legislation.

I suspect, when most in this chamber have left, the courts will still be determining these implications, and perhaps some of us in our dotage will be able to say, 'I told you so,' or some others might be able to say they told us so in relation to what the legislation really meant in terms of its implications. Certainly, on the advice that has been provided to me, I would hope from South Australia's economic viewpoint and industrial viewpoint that the warnings that have been given by people whose opinions I respect, such as Dick Whitington QC, do not come to fruition.

The warnings have been stark in terms of the problems that we are about to enter. As we get to clause 8 and others, we will start to see what some of the implications of the legislation will mean in worksites and industrial premises in the future. Dick Whitington QC asks the question and provides an opinion of what is a PCBU. One of his opinions is:

The 2011 Bill contains no comprehensive definition of 'a person conducting a business or undertaking'. Instead, there is a provision in s 5—

which is the section we are looking at—

which merely operates to confirm certain aspects of the reach of the provision without actually explaining what is meant by the expression and, in particular, without explaining what is meant by 'conducting', 'business' or 'undertaking'.

The expression 'business' is one with a reasonably well-established meaning in law. The expression, 'undertaking' is not so clear. The relevant meaning given in the Macquarie Dictionary is of a 'task' or 'enterprise'. Plainly the expression is wide enough to cover such things as home renovations and possibly even a single task of work in a residence (e.g., changing a light bulb) (and this appears to be confirmed by the terms of section 20). In this context, the word 'conducting' may not be a limiting expression.

Hence, the basal criterion or pre-condition of liability informing the primary duty of care is no longer a relationship of employer and employee and instead is one of general (circumstantial) proximity between a person carrying on some business or undertaking and a person exposed to risks to health or safety ultimately as a result of that business or undertaking. Further, there is no requirement that the PCBU shall actually have created the relevant risk which resulted in injury or possible injury nor that they have any actual control over the risk. In practice, in many cases the duty will be derivative in the sense that the PCBU will not be responsible for controlling the relevant risk to health and safety although they will have engaged the person who has created the risk in connection with the PCBU's business or undertaking.

Other provisions in the 2011 Bill create other duties overlain on or concurrent with the duties in section 19.

I hasten to add that aspects of that legal opinion were based on the government's bill, which was staunchly defended by the government before it agreed to support some amendments relating to introducing one version of a control amendment in the legislation, and we will debate that later on. The other elements of the legal advice, I am advised, still apply to the bill as it will be amended by the deal between the Hon. Mr Darley and the Labor government.

My question to the minister is, and I refer to the first aspect of the legal advice; that is, Dick Whitington QC is saying that a PCBU does cover such things as home renovations. Pardon me for my sins in that I continue to refer to the claims the minister makes on radio and in this parliament. I know he does not like me referring to what he has actually said but let me refresh his memory in relation to this. He has been challenged on a number of occasions on this issue that a home owner is a PCBU, a home owner who has engaged a tradesperson for home renovations, or something. On FIVEaa, in one of those infamous interviews he gave on a Sunday evening, the minister said:

As a home owner, if you engage a tradesperson you are not responsible, you are not a person conducting a business or undertaking.

He is saying: if you are a home owner and you engage a tradesperson for home renovations you are not a PCBU, you are not a person conducting a business or undertaking. On the one hand, we have the minister making those claims, on the other hand, we have the eminent QC, Dick Whitington, who says:

A PCBU does cover such things as home renovations, and possibly even a single task of work in a residence such as changing a light bulb.

My question to the minister is: given the advice from Dick Whitington QC on this issue, how does the minister justify the extraordinary claims he continued to make on FIVEaa and other sections of the media that a home owner engaging a tradesperson for home renovations was not a PCBU within the construct of the legislation?

The Hon. R.P. WORTLEY: Our advice from Safe Work Australia is that a home owner undertaking home renovations is not a PCBU. A home owner who engages a tradesperson is not a PCBU; the tradesperson is the PCBU. It is as simple as that. I know that those opposite struggle with this concept. Firstly, in this legislation a person can include a partnership or an unincorporated body, it can also be an individual but for this legislation only where the individual is conducting a business in their own right.

Secondly, a business is an enterprise that is usually conducted with a view to making a profit. It will have a degree of organisation system and continuity. Thirdly, the use of the term 'undertaking' recognises that there are some activities that do not have a commercial focus but that will employ workers and will potentially impact on the safety of others. An undertaking will have elements of organisations and systems. For example, a local council is not a not-for-profit organisation that employs administrative staff. I am sure that even those opposite can see that this concept recognises the range of work relationships where work occurs.

I also want to point out that the PCBU concept was recommended after a major review by expert occupational health and safety academics. It was headed by a number of eminent occupational health and safety practitioners, including Robin Stewart-Crompton and Barry Sheffield. The concept of a PCBU is already in place in Queensland, so there are precedents that are already in existence and there have been no major issues.

The Hon. R.I. LUCAS: So the minister's best response in response to Dick Whitington QC's legal opinion is to quote from the Safe Work Australia website. The last time I checked Safe Work Australia was not the source of legal advice to either the commonwealth government or the South Australian government. My question to the minister is: has he received legal advice in South Australia from crown law or any other legal entity which challenges Dick Whitington QC's legal opinion that a home owner conducting a home renovation is a PCBU?

The reason I ask the question is that this is not an insignificant issue because every one of us, I suspect, at some stage or another has been a home owner who has employed a tradesperson for home renovations. Every one of us has been in a position where we have had specialised tradespersons (electricians, plumbers or whatever) in our work premises or in our homes undertaking work. If we are, as Dick Whitington says, a PCBU—that is, a person conducting an undertaking, the undertaking being the employment of a specialist tradesperson—then we have occupational health and safety duties under the legislation.

So what the minister is guaranteeing to us tonight is that if there is ever a decision taken to a court or an action taken by SafeWork SA, and you end up in court, you will be able to quote minister Wortley in saying, 'I'm not a PCBU,' even though Dick Whitington QC has indicated that you are a PCBU, that you are subject to the duties, requirements and responsibilities of the work health and safety legislation and that you cannot just pretend otherwise. So, I am sure that will be great comfort to anyone who in the future is taken to court that they will be able to quote minister Russell Wortley as having, when asked the question as to whether Dick Whitington QC was correct, said no, he was not. When he was asked whether he had any legal advice he could put on the table to challenge that, he refused to provide any legal advice that challenged that. He just baldly quoted from the Safe Work Australia website and said, 'There you go.'

So, as I said, if you end up in court you can quote the Hon. Russell Wortley and the Safe Work Australia website of the particular year in relation to this particular action. This is an important issue and it deserves to be treated seriously by the minister and clearly is not being treated seriously when someone of the eminence of Dick Whitington QC has indicated to all of us that what is a commonplace set of circumstances, which would place significant additional duties on many of us, the minister says, 'Well, Dick Whitington doesn't know what he's talking about.'

The Hon. R.P. WORTLEY: Safe Work Australia has provided advice that is consistent right across this country. It has its legal advice that it gets. Reviewers such as Barry Sherriff are respected occ health and safety legal practitioners in the area of this law. So we have confidence that the legal advice that Safe Work Australia has, and on which it has consistently given advice to the various states, can be relied upon and we look forward to the passage of this section of the bill.

The Hon. R.I. LUCAS: Is the minister claiming that Barry Sherriff and the other person he quoted actually gave legal advice on the specific question I put?

The Hon. R.P. WORTLEY: No, I am saying that in the review that developed this concept for the PCBU they are experts in their field. They are legal practitioners and experts in the field of occ health and safety.

The Hon. R.I. LUCAS: And that is exactly the situation, that is, they have not addressed this particular issue. They may well support the position that a home owner who employs a tradesperson should be treated as a PCBU. All the minister is saying is that those two legally-trained people were part of a group of people who advised officers, and ultimately governments, to agree to the concept of a person conducting a business or undertaking.

They certainly did not provide legal advice on the specific issue on which Dick Whitington has been asked to provide advice, that is: is a home owner who employs a skilled tradesperson for home renovations a PCBU within the context of this act? Dick Whitington QC says yes; the two gentlemen the Hon. Mr Wortley talked to have not even addressed the issue. They were part of a team that recommended the use of the term 'person conducting a business or undertaking'.

The Hon. R.P. WORTLEY: The thing missing here is the fact that this legislation and the concept of PCBU now applies in Queensland, New South Wales, Tasmania, the commonwealth, the Northern Territory and the ACT. This debate has been had and probably done to death in all those states, and has been adopted in each jurisdiction. Again I make quite clear that Safe Work Australia has its legal advice and would make sure that this legal advice is in accordance with occ health and safety. So I look forward to the passage of this clause.

The Hon. R.I. LUCAS: Can I assure the minister that in all those jurisdictions where there was a debate through their parliaments in relation to it that not one had a comprehensive debate in relation to the committee stages of the legislation, and certainly not in relation to these specific aspects that Dick Whitington QC has highlighted in South Australia.

In fact, in some of the other jurisdictions such as Queensland and the Northern Territory, with the election of the CLP government in the Northern Territory and a LNP government in Queensland, both those incoming governments have indicated that they are currently reviewing the model bills in those jurisdictions and have, in Queensland's case, already flagged potential amendments to the legislation.

In the Northern Territory's case we understand that they have indicated a willingness to look at changes to the legislation there as well. Certainly the reality is going to be that the longer this legislation is in, the more it will be amended in other jurisdictions; let me make that prediction and I am happy to stand by it over the coming years.

It will not happen at once because, as I said, this will be the result of court decisions and precedents in the various jurisdictions, and governments will be horrified at what we are being asked to pass here and what has been passed in other states, and those who support it will be called to account in the future when those decisions are taken.

Clause passed.

Clause 6 passed.

Clause 7.

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

Page 19, line 23—After 'volunteer' insert:

, other than where the volunteer is working as a member of, or assisting, a volunteer association

Amendment negatived.

The Hon. R.I. LUCAS: Can the minister outline to the committee the essential differences from the government's viewpoint in the definition of 'worker' in the proposed bill compared to the existing act?

The Hon. R.P. WORTLEY: The existing act relies on the definition of employee, where the Work Health and Safety Act recognises that there will be more working relationships than just employee. This would include a contractor or a subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work in a person's business or undertaking, an outworker, an apprentice or a trainee, a student gaining work experience, a volunteer or a person of a prescribed class. For the purposes of this act, a police officer is a worker, and at work throughout the time when the officer is on duty or lawfully performing the functions of a police officer. The person conducting the business or undertaking is also a worker if a person as an individual carries out work in that business or undertaking.

The Hon. R.I. LUCAS: In relation to that last provision, what the minister is saying to the committee is that an individual for the purposes of this act can be both the PCBU and have the duties and responsibilities of the PCBU, but can also be a worker and have the duties and responsibilities of a worker. Is that what the minister is saying?

The Hon. R.P. WORTLEY: That is right.

Clause passed.

Clause 8.

The Hon. R.I. LUCAS: This is the appropriate place, I am told, to raise questions in relation to work from home. I indicated earlier that one of the concerns I and many others have with the legislation is that we will not see the implications of this legislation until much further down the track, as a result of court decisions, etc. I want to refer to where occupational health and safety decisions have arrived at in the Eastern States to flag some of the concerns I and some other members have in relation to workers who work from home.

The first thing to note is that for work-life balance—and certainly there is provision provided for under the Fair Work Act—an increasing number of workers are working from home for part of the work week. They may well work for three or four days in the office environment and work for one or two days a week in the home environment. For work-life balance and a variety of other reasons, that has been supported by many employers and, obviously, many employees as well.

I want to refer to a couple of decisions which have been highlighted in the last 12 months, where lawyers and occ health and safety experts have started to issue some cautionary notes about, firstly, those decisions and, secondly, what the implications of this legislation may well entail, and the first one I want to refer to is the example of a Telstra worker who was working from home who successfully claimed work-related injury and workers compensation, having fallen downstairs on two occasions at home.

This was a Telstra employee who claimed compensation after being injured at home. This worker had twice slipped on the stairs whilst wearing socks, injured herself and claimed that it was a work-related injury because at the time of coming down the stairs in her socks it was related to her work that she was conducting from her home.

Subsequently, the worker indicated that she was suffering from other stress-related injuries in relation to the way the business or company managed her injury, her workers compensation claim and her return to work, and she was successful in her workers compensation claim in relation to that. This is already an important issue and it is going to be increasingly important under the legislation we are being asked to consider.

The government, for some reason, has agreed that a workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to be while at work. In a moment I will be asking the minister why the government believes 'or is likely to be' is important. It just seems common sense and logical that a worksite should be where you actually work and if you happen to go to lots of different places then you have lots of different places covered in a worksite. The notion of where you are likely to be, whether you actually are there or ever get there, does not appear to make much sense—at least to me.

That is, I guess, in the normal interpretation of these things in terms of the office environment, until you start talking about your work environment being your home and wherever it is at home that you are working, and where you are likely to be and what, first, can be claimed by the worker (which is a workers compensation issue, obviously) and, secondly, what an employer can be prosecuted for under the Work Health and Safety Bill in terms of duty of care for a worker working at a worksite which, in this case, happens to be the home environment.

Let me refer to the decision regarding the Telstra employee Dale Hargreaves in 2006. She fell down the stairs twice while on a break at home. The Administrative Appeals Tribunal found in June that Hargreaves' injuries had occurred in the course of employment and she was, therefore, eligible for compensation. The AAT also found that Hargreaves' psychiatric condition or ailment—she later developed depression and anxiety—was caused by issues involving her return-to-work plans and she was entitled to compensation under the act.

Telstra was the employer and was ordered to pay the costs of all medical and related treatment expenses and weekly compensation payments in respect of incapacity for work for all periods when Ms Hargreaves' ability to earn was less than the normal weekly earnings, as well as costs related to the action. Kate Jenkins, a partner at Freehills (one of the leading law firms in Australia), said:

The Telstra decision is a pretty frightening one for employers. The line between personal and work has really become quite blurred. Twenty years ago it was quite clear—when you were at work you were at work. The lines didn't overlap like they do now.

Simon Dewberry, a partner at Allens Arthur Robinson (again, one of the leading law firms in Australia), said:

There's always been a limit between what is considered an employer's responsibility versus an employee's responsibility but this case went beyond many people's expectations. It's just that somebody thought the limit was someone walking around in socks and falling down the stairs.

Mr Dewberry went on to say:

...the ruling is something employers should take into account while weighing up working from home requests, but it cannot be used as an excuse to reject them.

Kate Jenkins of Freehills says the issue came to prominence a couple of years ago when the Fair Work Act encouraged businesses to accept flexible working arrangement requests such as working part-time, job sharing and working from home unless there were reasonable business grounds to reject them. Further on in these articles Simon Dewberry (again from Allens Arthur Robinson) says:

And the obligation to OH&S extends beyond employees. If you have contractors working from home or in a home office and one of them zaps themselves or gets their hand struck in the shredder, your obligation is no less.

One thing to keep in mind is that it is not just the working area that needs to be safe in a home office but also facilities such as the kitchen and the bathroom because the court decisions have ruled that if the home office worker is working from the living area and needs to go to the bathroom or to the toilet, then clearly that is related to business or work and the employer (or the PCBU, in this case) will have a duty of responsibility in relation to the occupational health and safety arrangements from the working area in your home to the bathroom, kitchen and toilet because they can be linked to the notion of working from home; that is, you as an employer have agreed to that employee working from home. When faced with a request to work from home, Kate Jenkins from Freehills said:

...business should start the process by thinking about the employee's role, the barriers to it being performed effectively from home, and how those can be overcome.

Allens Arthur Robinson partner, Simon Dewberry, says:

In some circumstances it's possible that because of the nature of the work that the person is doing, the risk to health and safety is so high that you could justify rejecting the request on that particular basis.

The advice from Freehills solicitors is:

Before you agree to home requests, consider a trial before making a commitment. Put your decision-making process and arrangements in writing, set up a broader policy to be used company wide.

Jessica Fletcher, a senior associate at Hall & Wilcox, says, 'It's more prudent for a company to do its own assessment.' These experts are saying what businesses may well have to do is conduct an occupational health and safety audit of a worker's home, and there are two options: you pay for an OH&S consultant to go into the person's home to do the audit and satisfy the PCBU that the work health and safety obligations under this legislation are going to be covered, or you can give the worker who wants to work from home a checklist to check off and indicate that these things have been looked at. Jessica Fletcher, a senior associate at Hall & Wilcox, says:

It's more prudent for a company to do its own assessment and this should include the workplace layout, laptops, lighting, thermal, ergonomics, ventilation and electrical safety.

Another issue to consider is whether an employee, feeling under the weather and therefore unable to head into the office, should be permitted to finish off a few things at home before going to the doctor or bed.

This is an even more common circumstance, where someone who is unwell takes work home to work from home whilst they are unwell. This advice says:

There are obvious attractions to this practice. The employee avoids going into the office and gets key jobs out of the way so they don't have to play catch-up when they return. The employer isn't caught with one less worker and doesn't have somebody spreading germs around the office.

But Jenkins says companies should think twice about permitting an ill employee to do a little bit of work from home on their day off without considering the occupational health and safety ramifications under the legislation. Jenkins says:

From an occupational health and safety point of view and from a workers compensation point of view, there is a risk, despite the pragmatic view that 30 minutes' work now can save hassle down the track.

There is another issue that Freehills have raised—they raised a number of issues. They say:

Employers are increasingly implementing drug and alcohol policies which provide for random tests as part of a suite of measures to meet the duty of care obligations. These may need to take home-based work into account.

So Freehills are saying that under this legislation, if you are implementing random drug and alcohol policies and allowing someone to work at home, you may well need to take into account a random drug and alcohol test for your employee whilst he or she is working from home. Freehills also advise employers that, under this legislation:

For example, employers may have to inquire whether there are pets at home. This will be a necessary and relevant risk to consider if a contractor or work colleague is required to deliver or service a printer or some other piece of equipment.

It raises the question of, if a dog injures a fellow worker or contractor who comes onto what is a worksite, under the provisions of this bill the PCBU has responsibilities (according to Freehills) in relation to not only the office work environment but also the home work environment.

When these issues were first raised, I know a number of people had a chuckle about them and thought, 'Let's talk about the real world.' Can I remind members in this chamber that this is the real world. This is a decision taken in relation to Telstra. It was a decision taken by the Administrative Appeals Tribunal. It has now been assessed by some of the leading legal firms and occupational health and safety consultants in the nation who are indicating that, under these new arrangements and these definitions, employers will need to start making these sorts of arrangements.

My first question to the minister is: have the minister and SafeWork SA taken advice in relation to the implications for workers who work from home with the agreement of employers under the provisions of the work health and safety legislation? If so, what has been the advice that SafeWork SA and the minister provides to persons who qualify as a PCBU?

The Hon. R.P. WORTLEY: Employers have health and safety responsibilities to their workers, no matter where they are working, under both the current and the proposed laws. If you run a business in your home your home is a workplace, and you have responsibilities under both the current and the proposed laws. If you allow your workers to work from home, you retain a health and safety responsibility for them under the current and the proposed laws.

The Hon. R.I. LUCAS: Does the minister concede that the definition of workplace in the new bill is significantly different to the definition of workplace, or the equivalent definition, under the existing legislation?

The Hon. R.P. WORTLEY: They are very similar. The meaning of 'workplace' under the proposed act is 'a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work'. Under the Occupational Health, Safety and Welfare Act a workplace is 'any place (including any aircraft, ship or vehicle) where an employee or self-employed person works and includes any place where such a person goes while at work.'

The Hon. R.I. LUCAS: Can the minister indicate why, in the new act, the government has agreed to the inclusion of 'or is likely to be'? Why does the minister believe that the words 'or is likely to be' as opposed to actually attending or being at work is a useful part of a definition of a workplace?

The Hon. R.P. WORTLEY: The National Review into Model Occupational Health and Safety Laws noted, in its second report, that the definition of a workplace should state that a workplace may include not only where work is actually done but also where a worker may be expected to be during the course of work. This is based on consultations, where it was made clear that a workplace may include not only where work is actually done but also where a worker may be expected to be during the course of work. The inclusion of the term 'or is likely to be' in the definition ensures adequate coverage of workers wherever they are required to undertake legitimate work activities. That is similar to the current Western Australian act.

The Hon. R.I. LUCAS: In relation to the interpretation of 'or is likely to be', clearly the key part of the worksite of a salesperson who represents a company is their office, the particular business they operate from and where they spend a good amount of their time, but a salesperson would also spend a considerable portion of their time visiting work premises of other businesses throughout the state in the interests of cold calling, selling, delivering, or whatever it might happen to be.

Is the minister saying, in relation to the workplace of that particular employee or work of the PCBU, that that worker's workplace is every other worksite they visit, not ones controlled by the PCBU but ones that they visit to sell an item from that particular business, that in all those cases that is a workplace in relation to that particular worker?

The Hon. R.P. WORTLEY: With respect to the salesperson, yes, their employer would have responsibilities to ensure that they are safe wherever they are, but also when the salesperson is at another PCBU workplace that PCBU would have responsibilities for the salesperson to ensure that they are safe at the other PCBU's workplace.

The Hon. R.I. LUCAS: I accept the second notion. Clearly, if a salesperson visits your worksite of a PCBU you have responsibility, but what is the responsibility of the PCBU that employs the salesperson? The PCBU has responsibility for their worksite, that is clear. When the salesperson visits the worksite of someone else, what is the responsibility for the PCBU of the salesperson? How can they be expected either to impose conditions or requirements on the worksite of another PCBU completely unrelated to the PCBU who employs the salesperson?

The minister, I am sure from his pre-parliamentary experience, would be familiar with the circumstances of salespersons visiting other worksites. For the life of me I cannot understand how the government and the minister can be saying that the PCBU that employs a salesperson from a business at Port Adelaide is responsible when that salesperson is visiting a business in Mount Gambier. How can they have any influence or responsibility for a workplace about which the minister is saying, 'That's the workplace where work was carried out, because it's where your worker was likely to be.' They are likely to be at Mount Gambier, or Roxby or whatever it happens to be. How can the PCBU have any responsibility for the conditions of worksites which are really the responsibility of another PCBU?

The Hon. R.P. WORTLEY: The PCBU will have responsibilities as far as reasonably practicable. They would have responsibility to make sure that the salesperson has a car that works in a safe manner. They might have to have a phone, so if he or she breaks down somewhere they have access to a phone. It is as far as reasonably practicable.

The Hon. R.I. LUCAS: I accept the bit about a phone and a car—that is logical—but we are not talking about that. The minister is saying, 'Let's include in this definition that a workplace is going to be where work is carried out for a business and includes any place where the worker goes, or is likely to be, while at work.'

So, this worker, this salesperson, is likely to be in a lot of places; he will not perhaps attend all of them. It does not say that you have to be in all of these places; it just says where you are likely to be. So, if you are a sales representative for the whole of the southern area of South Australia, it is likely that you could be at all of those worksites where anyone purchases those particular products.

For the life of me, I cannot understand why the minister would want to have in legislation something as indeterminate as that, yet, as the PCBU employs the salesperson, in some way I am going to have some responsibilities for anything that might happen to my worker on that particular worksite. If it is a car and phone, I can understand all of those issues but, in relation to let us say a neglect of duty in relation to a safety issue on a worksite in Mount Gambier, how I as the PCBU in Port Adelaide, when my staff member is headed down there, can be held responsible in some way under this bill, for me the life of me, the logic of that escapes me.

The Hon. R.P. WORTLEY: The employer or the PCBU will do what is reasonably practicable. In clause 16, it makes it clear that both PCBUs have the duty and must discharge the duty to the extent the extent that they have the capacity to control or influence the matter. So, if the particular PCBU provides their salesperson with a phone and a car and all that they have control or influence over, they would be exercising their responsibilities under the act. It is as simple as that.

The Hon. R.I. LUCAS: I will not pursue that. I intend to move my amendment because I have not heard anything from the minister that indicates why the words 'or is likely to be' serve any useful purpose in terms of the legislation. Clearly, to me a workplace should be what it is; that is, a workplace is where a worker is actually working, and you have some control and you can be held to account for that. Why you should be held to account for something you have no control over is beyond me.

Before I move the amendment, I want to return to this issue of working from home. I want to refer to 'the gift that keeps on giving', which is the minister's interview on FIVEaa. On this occasion, I want to quote from some advice Ms Boland gave in response to a question. A caller rang and said, 'What are your responsibilities if you employ at home a nanny?' Ms Boland said:

Same thing, employers have responsibilities no matter where the workers are and you'll find that a lot of, particularly I guess bigger employers would already have working at home policies in place and then...the nanny example [which was the question]...if you directly employ a nanny on an ongoing regular basis well then you are the nanny's employer and your home is the nanny's workplace...the important thing to remember in all of these laws is that everything is based on what's reasonable so clearly, you're not going to go around putting up signs in your home, but you have to...

Then Ms Boland indicated what you are going to be required to do under the legislation. She said, '...if the driveway to your home has a drop you have to alert the nanny to don't walk out the door and fall down'. It seems extraordinary that the government's SafeWork SA advisers are saying—and I ask the minister whether that is his view of what the requirements are going to be—that, if you employ a nanny at home and the driveway to your home has a drop, under this legislation you have to alert the nanny to not walk out the door and fall down.

I guess to many of us that would appear to be self-evident—that is, the nanny has come into your place and, if there is a drop, you should necessarily have to tell them to not walk out the door and fall down. Is the minister indicating that it is a requirement on all of those families who employ nannies that they have to have a written or verbal policy to advise their nannies not to fall down steps, or whatever it might happen to be, in the home environment?

The Hon. R.P. WORTLEY: If you directly employ a nanny, you are the nanny's employer and your home is the nanny's workplace, and you have responsibilities under the current and the proposed laws. If you employ a nanny, who starts at 8.30 at night and it is raining and all sorts, and you know you have a ditch in your driveway, you have an obligation to let that nanny know, 'When you are walking up the driveway there's a ditch and you might fall and injure yourself.' It's only common sense. A lot of this is just common sense. If you employ a nanny through Angels or another organisation where you are not the PCBU, it is that organisation that is the PCBU.

The CHAIR: Hon. Mr Lucas, there is an amendment in your name.

The Hon. R.I. LUCAS: Indeed there is.

The CHAIR: We are just trying to work out if you have moved it.

The Hon. R.I. LUCAS: I have not moved it yet, but I will move it. To my knowledge, most parents probably do not employ their nannies through Angels or whatever it happens to be; they are domestic working arrangements with people they know, but put that to the side for the moment. The minister's advice is that, under this legislation, there will be a requirement that the person from home—the mum or the dad—will be a PCBU, because that is the advice from Ms Boland, it would appear. If the driveway to your home has a drop, you have to alert the nanny to not walk out the door and fall down.

I am assuming the minister's advice is that the parent is a PCBU because they have employed the nanny, and that is the advice from Ms Boland. Given that the minister is saying that the parent is a PCBU, what is the requirement, given that you have an employee, in terms of occupational health and safety policy? As a PCBU, do you have to have all of the other requirements in the legislation for PCBUs; that is, do you have to have an occupational health and safety policy or work health and safety policy and guidelines which are available to all your employees?

The Hon. R.P. WORTLEY: The responsibilities under the proposed act are exactly the same as those under the old occupational health and safety act. If you employ someone, you have an occupational health and safety obligation to them. It is no different. I can understand you making points if there is a change or if there are some different responsibilities, but they have the same responsibilities. It is no different. They have an obligation—and quite rightly so—to ensure that they work in a safe and healthy environment.

The Hon. R.I. LUCAS: What the minister does not realise is that for the first time the legislation introduces an entirely new concept of a person conducting a business or an undertaking. As Dick Whitington QC has outlined, 'undertaking' is a much broader concept, still undefined in South Australian law, in terms of the employer-employee relationship. Contrary to what the minister has said, that this is exactly the same as the existing occupational health and safety act, that is not correct based on the advice of Dick Whitington QC. PCBU is a much wider concept than the current and old standards of employers and employees and businesses. The PCBU is a much broader concept.

I have to say, having followed this issue for 20 or 30 years, I have never seen a previous minister for industrial relations or occupational health and safety, or SafeWork SA, warn parents at home who employ nannies that they have to have occupational health and safety policies, because under the legislation the PCBU is required to have occupational health and safety policies and procedures to protect the workers that they employ. What the minister is saying is that the parent at home is a PCBU, is employing a worker, which is a nanny, and therefore all the other requirements in the legislation for PCBUs applies to the parent at home employing a nanny. That is what the minister has said tonight, backed up by SafeWork SA advisers.

The minister says that is unexceptional, of course it is common sense, and it needs to be followed. Let us see in the court of public opinion what people think of the minister's assessment that it is common practice, that everyone understands this, and there has been no change made in relation to the simple practice of a mum or a dad employing a nanny.

Minister Wortley, this government and SafeWork SA say they are a PCBU, and they have to have occ health and safety policies and guidelines. When the committee resumes, we will be able to go through all of the requirements that parents employing nannies are going to have to undertake as a result of the advice the minister has just given. Mr Chairman, I move:

Page 19, line 33—Delete ', or is likely to be,'

I move this amendment for the reasons I have outlined earlier, and I do not intend to repeat them. It makes no sense; the minister has not provided any rational explanation as to why it ought to be included. It does no useful work at all, and it ought to be deleted.

The committee divided on the amendment:

AYES (7)
Brokenshire, R.L. Dawkins, J.S.L. Lensink, J.M.A.
Lucas, R.I. (teller) Ridgway, D.W. Stephens, T.J.
Wade, S.G.
NOES (8)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. Hunter, I.K. Maher, K.J.
Parnell, M. Wortley, R.P. (teller)
PAIRS (6)
Lee, J.S. Vincent, K.L.
Hood, D.G.E. Zollo, C.
Bressington, A. Kandelaars, G.A.

Majority of 1 for the noes.

Amendment thus negatived.

Clause passed.

Clauses 9 to 12 passed.

Progress reported; committee to sit again.

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