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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-31 Daily Xml
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WORK HEALTH AND SAFETY BILL

Committee Stage

Committee debate resumed.

The Hon. R.P. WORTLEY: Where there is a body corporate and there are people who are 100 per cent volunteers on that strata, they are immune from prosecution for a breach of officer duties. When it comes to Alan Bond, he or any person in that category can still be prosecuted as a worker or other person under sections 28 and 29 of the bill. This also answers the question asked by the Hon. Tammy Franks.

The Hon. J.A. DARLEY: I have a further amendment, but could I clarify the point? My amendment concerns a company that holds land for the purposes of a building unit scheme consisting of two or more properties designed for separate occupation where the buildings comprising the scheme were erected before 22 February 1968. We are not talking about companies in the general sense: we are talking about companies in terms of company shareholding schemes with units.

The Hon. R.I. LUCAS: I understand that point. The chamber having passed the member's amendments, I am not asking questions about his amendment: I am asking questions now about the government bill, which is clause 34(1).

What the Hon. Mr Wortley has just indicated to the committee is that if, for example, James Packer—let's move beyond his Alan Bond example—is sitting on the board of a company and does not take a fee (all he is doing is sitting on the board of the company), he in some way wants us to believe that he can actually be prosecuted as a worker.

Give me a break! James Packer or Lachlan Murdoch sitting on the board of public companies do not resemble workers. They are directors and are there for their expertise that they can offer to the particular boards that they are asked to sit upon; and the minister stands up in this house and says that Lachlan Murdoch or James Packer, if they are volunteer directors and therefore cannot be prosecuted as a director, can be prosecuted as workers within the companies. Give me a break!

If SafeWork SA is unsuccessful in relation to the Salvemini case, I would love to see them trying to hang that one on Lachlan Murdoch or James Packer, with the QCs they would have lined up on the basis that minister Wortley was going to prove that they were actually workers and not really directors of the companies. So, give me a break, as I said.

The minister's responses and answers have become more and more fanciful as the day has gone on. The response bears no resemblance to the facts. Sadly, the record will show that this has been the standard of the government response through the minister in relation to this issue. I am disappointed that this issue, having been raised, has basically been dismissed by the minister, saying 'Well, the Liberal Party is wrong; we would be able to prosecute Lachlan Murdoch or James Packer as a worker.' When the court of public opinion hears about this over the next 24 to 48 hours, I suspect that the minister may well adopt his response of this morning, that he does not comment on bills whilst they are before the parliament.

Clause as amended passed.

Clauses 35 to 37 passed.

The Hon. R.I. LUCAS: I will not be moving my amendments Nos 25 to 45, as they are consequential.

Clauses 38 to 67 passed.

Clause 68.

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

Page 46, after line 9—Insert:

(3a) Subsection (2)(g) does not extend beyond—

(a) a person who works at the workplace; or

(b) a person who is involved in the management of the relevant business or undertaking; or

(c) a consultant who has been approved by—

(i) the Advisory Council; or

(ii) a health and safety committee that has responsibilities in relation to the work group that the health and safety representative represents; or

(iii) the person conducting the business or undertaking at the workplace or the person's representative.

This is a new issue, which has not been discussed before. We are in the section of the bill which relates to the powers and functions of health and safety representatives. The provisions in the legislation allow a health and safety representative, if required, to have assistance, through a consultant or an adviser.

I referred indirectly to this, I think, in the debate yesterday when we indicated that our position was that, whilst we opposed automatic right of entry for unions, we accepted that unions, if workers so wished, could and should be involved in those circumstances. We highlighted the circumstances where the workers can appoint a union member as a health and safety representative, if they so chose; that would be a free choice for them.

Then, secondly, if the health and safety representative felt that they needed the assistance of someone from outside the company, whether it be on the basis of expertise or whether they felt intimated by the employer, or for whatever reason, in relation to a health and safety issue, again, as I indicated yesterday, we are quite happy for a properly approved and accredited consultant or assistant who is a union representative to be engaged or involved as well. In essence, this is in part tackled by this particular issue. Our amendment provides:

(c) a consultant who has been approved by—

(i) the Advisory Council, or

(ii) a health and safety committee that has responsibilities in relation to the work groups that the health and safety representative represents; or

(iii) the business conducting the business or undertaking at the workplace or the person's representative.

There is a related amendment in the same clause (amendment No. 47), which defines 'consultant' as being 'a person who is, by reason of his or her experience or qualifications, suitably qualified to advise on issues relating to work health, safety or welfare'.

It has evidently occurred in the Eastern States in some cases where, rather than bringing in someone who might help resolve the health and safety issue from a health and safety viewpoint, some health and safety representatives might have been attracted to bringing in a media outlet or a journalist or whatever else it happens to be.

So, rather than bringing in someone properly trained and accredited to try to sort out the issue from a health and safety viewpoint, some people have sought to use, if it is wide enough, the provision to bring in somebody who is not a health and safety representative, consultant or adviser in any way but someone who might just serve to further inflame the situation. So, we think the amendment we are moving is a relatively simple one; we think it is a logical amendment and worthy of support.

The ACTING CHAIR (Hon. G.A. Kandelaars): And are you moving both amendments?

The Hon. R.I. LUCAS: I am happy to do so, Mr Acting Chair. I move:

Page 46, after line 11—Insert:

(5) In this section—

consultant means a person who is, by reason of his or her experience or qualifications, suitably qualified to advise on issues relating to work health, safety or welfare.

The ACTING CHAIR (Hon. G.A. Kandelaars): We are considering amendments Nos 46 and 47. Minister?

The Hon. R.P. WORTLEY: The government supports both the amendment and the consequential amendment. Whilst we did not seek this amendment, it does not infringe upon the key pillars of a harmonised bill; therefore, in the interest of progressing this important legislation, the government will support the amendment.

Amendments carried; clause as amended passed.

Clause 69 passed.

Clause 70.

The ACTING CHAIR (Hon. G.A. Kandelaars): What is your intention, Hon. Mr Lucas, in terms of amendments Nos 48, 49 and 50? Are they consequential?

The Hon. R.I. LUCAS: I will just speak to 48 and 49; I deem these to be consequential and I will not be moving them. In relation to clause 70 I will just give, as another example, a point that I made earlier in the debate, and this is in relation to 'Obligations of person conducting business or undertaking to health and safety representatives'. These are general obligations of persons conducting a business or an undertaking.

The minister, as I said earlier, has conceded that mums and dads employing nannies are persons conducting businesses or undertakings, and I just again highlight, in some cases, the absurdity of some of the requirements of the legislation as it relates to what the minister has now put on the record, that is, that a mum or dad employing a nanny is a person conducting a business or undertaking.

I invite people to look at the two pages of obligations under clause 70 in relation to what a person conducting a business or undertaking is required to do. I am not sure who the health and safety rep for the nanny is going to be—I guess it will have to be the nanny. It is just another example of the requirements on a PCBU outlined in the legislation.

Clause passed.

Clause 71.

The Hon. R.I. LUCAS: My amendment No. 50 is consequential. I place on the record, and I am sure the government does too, our gratitude to the hardworking parliamentary counsel, who have drafted copious pages of amendments, most of which have been unsuccessful. In relation to clause 71, I am not moving amendment No. 50 because it is consequential, and I am not moving amendment No. 51 because that is consequential, but I want to leave open, at least for the moment, whether or not I move amendment No. 52.

This is in part consequential to the earlier amendment at clause 68 that I had not anticipated the government supporting. My question to the minister is in relation to subclause 71(5), which provides:

(5) The person conducting a business or undertaking may refuse on reasonable grounds to grant access to the workplace to a person assisting a health and safety representative for a work group.

(6) If access is refused to a person assisting a health and safety representative under subsection (5), the health and safety representative may ask the regulator to appoint an inspector to assist in resolving the matter.

I guess the only concern I have is—and here is me as the great champion of the workers and the unions and the minister as the ogre—in the circumstances, one of the reasons why I was seeking to delete these subclauses was that, in what has now been approved, what we have said is that if you are properly accredited and trained and you happen to be a union member or representative that is fine; but what is in here is, if I am the boss of a business and the workers decide to get a properly trained union rep to come in as their consultant, the boss can actually say no.

I am not sure why the minister, with his union background, would be wanting to support that position. If that is the position the minister wants, fine, but the reason I was looking to remove these subclauses was that our position was that we did not think unions should have automatic right of entry, and that is still our position. They are now going to have automatic right of entry, so maybe I should not give a continental that, if workers have appointed a consultant who is a union member and the boss does not like that person, he can veto the provision because the union, if it has coverage, can walk in there anyway.

But I am not sure why the minister from a Labor government is supporting a position where, if a union member is a properly accredited consultant, and the workers want him or her to come in and assist, the boss who hates unions will not let that particular person onto the worksite. I ask the minister what his reason is for that.

The Hon. R.P. WORTLEY: Clause 71(5) allows for a PCBU to refuse a health and safety rep's assistant access to a workplace on reasonable grounds. It is intended that access could be refused, for example, if the assistant had previously intentionally and unreasonably delayed, hindered or obstructed any person, disrupted any work at a workplace or otherwise acted in an improper manner.

The Hon. R.I. LUCAS: The minister is saying that he is comfortable with the boss of a business saying no to a worker who is a union representative, because this clause does not say they had to have committed any previous offences, or anything. That might be a circumstance and one could understand that, but there will be many circumstances where that might not be the case. The minister is comfortable with leaving this particular clause in the legislation?

The Hon. R.P. WORTLEY: I do not think that this clause is going to be used all that often. Those assistants, in particular union permit holders, are properly trained and very responsible, I must say. The Hon. Mr Lucas's own observation is that South Australia has a very good industrial record. There is no evidence that the current provisions to allow unions access to the workplace under the Fair Work Act are being abused, so we do not expect this clause to be used. However, if there is an issue where an assistant is refused, based on the fact that this person had disrupted the work, or whatever, unreasonably, well, so be it. It is consistent with protections in respect of right of entry, but bear in mind that the consultant may not be a union rep.

The Hon. R.I. LUCAS: If the minister is happy for a business owner to say no to a union person on any grounds, then I will not move ahead with the amendments. I therefore withdraw those particular amendments. I do note that the Liberal Party position in relation to stopping automatic right of entry by unions into worksites was unsuccessful, so the position is going to be that, if a union claims coverage, it will be able to send someone in, anyway.

Clause passed.

Clause 72.

The Hon. T.A. FRANKS: I move:

Page 48—

Lines 27 to 29—Delete:

'The person conducting a business or undertaking must, if requested by a health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend' and substitute:

A health and safety representative is entitled to take at least the prescribed number of days per year off work for the purposes of attending

Line 35—After 'conducting the' insert 'relevant'

After line 35—Insert:

(1a) The person conducting a business or undertaking must, at the request of health and safety representative for a work group for that business or undertaking, allow the health and safety representative to attend a course of training under subsection (1) (after undertaking the consultation referred to in subsection (1)(c)).

I will speak more broadly to the issue, and certainly there are a few amendments here that come under this particular issue regarding existing provisions to give health and safety representatives options to take at least five days off per year for the purposes of occupational health and safety training.

This has been an entitlement since 1986, and it ensures that health and safety reps (HSRs) are well equipped to deal with health and safety issues that do, of course, arise in the workplace. There are many providers who offer occupational health and safety training to these HSRs. I will keep my speech on this issue short, but certainly the evidence shows that poorly-trained representatives can be detrimental to safety, and it is vital to ensure that if a representative is in fact elected they are properly trained in order to for them to carry out their role. They have considerable powers under the act and they can also have considerable protections under the act in the performance of their role.

It is in the PCBU's interest, therefore, that these reps are well trained, ensuring that they know not only their powers but also their obligations. I note that this is the third incarnation of this particular amendment. I acknowledge that while the Greens had hoped to have a more significant entitlement to training, what we have before us is an entitlement for health and safety reps being proposed to be five days for the first year, three for the second, and two for the third in their term of office should they be re-elected or if a new person is elected that five days will kick in again.

I have also covered those who are on health and safety committees. Currently, where there are 20 or more workers in a particular enterprise, a committee is formed and there is 50 per cent workers and 50 per cent management. I understand that the government will not be supporting the entitlement for committees but will be possibly entertaining this Greens' amendment for that training entitlement to be extended to representatives. If they could indicate that at the beginning that would probably save this committee's time in proceeding through these clauses.

The Hon. R.P. WORTLEY: We support the amendments Nos 1 [Franks-3], 2 [Franks-3] and 3 [Franks-3]. I understand there is something happening with amendment No. 4.

The Hon. T.A. Franks: I will leave that in two parts.

The Hon. R.P. WORTLEY: Okay; good. We support the amendment for the increase in health and safety training.

The Hon. R.I. LUCAS: I have a question for the mover or the minister in relation to what is intended. The minister seems to be hinting that something different is going to happen to clause 4, so before we vote on amendments Nos. 1, 2 and 3 from the Hon. Ms Franks can either the mover or the minister indicate what is happening? In relation to the number of days of training and costs involved for health and safety representatives, what is the agreed position between the government and the Greens that we are going to be asked to vote on eventually?

The Hon. T.A. FRANKS: As I indicated in my statement, there are health and safety representatives and there are also those who are members of health and safety committees. My understanding is that the health and safety representatives have the government's support to continue to enjoy the access to the training, but I do not think the government will be supporting the committee's members; so, in fact, they are not going to support those particular workers and management to undertake this training. The training is outlined in the amendments; that is, five days for the first year of their term, three days for the second and two days in the third year.

The Hon. R.I. LUCAS: Can I clarify? Given the number of changes to the amendments, were five, three and one always the position in relation to health safety representatives, or was there at one stage an amendment which was five days, three days and one day?

The Hon. T.A. FRANKS: The Hon. Rob Lucas just asked me whether or not it was five, three and one. You actually repeated your numbers. Although this is not the amendment that we are debating now, originally I was seeking to have five days' entitlement each year.

The Hon. R.I. LUCAS: I thought the minister was indicating that amendment No. 4 was going to be put in two parts. What is the significance of that comment from the minister? What two parts and is the minister supporting one part and not the other?

The Hon. T.A. FRANKS: I am happy to respond to that. Amendment No. 4 [Franks-3], subsection (8)(a), provides:

no more than 20 persons are employed or engaged in a regular basis for the purposes of the relevant business or undertaking; and

That simply means that that is applying to the committees and the entitlements of committee members, which I do not believe the government will be supporting, but that is where it came from. That is why I will not be moving that particular subsection.

The Hon. R.I. LUCAS: So the Hon. Ms Franks is indicating that, in this package of amendments, she does not intend to move subclause (8)(a) but does intend to move all of the remaining sections of amendment No. 4 as part of the package that she has agreed with the government?

The Hon. T.A. FRANKS: Indeed, that is right.

The Hon. R.I. LUCAS: Minister, are the current requirements for the training of health and safety representatives five days for the first year, five days for the second year and one day for each subsequent year?

The Hon. R.P. WORTLEY: The current entitlement is five days for the first year, second year and the third year, so it is 15 days over the three years.

Amendments carried.

The Hon. R.I. LUCAS: My amendment No.53 is consequential and I will not move it.

The Hon. T.A. FRANKS: I move my amendment [Franks-3] 4 in an amended form:

Page 49, after line 21—Insert:

(9) For the purposes of this section, the prescribed number of days, in relation to a health and safety representative, is—

(a) during the first year of the health and safety representative's term of office—5 days; and

(b) during the second year of the health and safety representative's term of office—3 days; and

(c) during the third year of the health and safety representative's term of office—2 days,

(and if the health and safety representative is re-elected at the end of a term of office then paragraphs (a), (b) and (c) will again apply during that new term of office).

The ACTING PRESIDENT (Hon. G.A. Kandelaars): We need to be very clear.

The Hon. R.I. LUCAS: The Hon. Ms Franks might be, but the rest of us might not be.

The ACTING PRESIDENT (Hon. G.A. Kandelaars): Well, we had better be very clear.

The Hon. R.I. LUCAS: Exactly, and that is the point that I am raising. As I understand it, the Hon. Ms Franks is now saying she is not going to move to insert subclause (8), and she is just moving to insert subclause (9). I hear that, but what I want to know is: what is the impact of this? I think the honourable member has just indicated that the government is not supporting subclause (8). Can the minister outline what the concerns are in relation to subclause (8) and what, if any, additional imposts might be imposed on business as a result of this?

The Hon. T.A. FRANKS: The Hon. Rob Lucas would be well aware that, in fact, this is the system as currently exists that the Greens have attempted to maintain, so there is no additional impost. In fact, it will be a cost saving to government. South Australia traded away its entitlements to these training options for both health and safety representatives and members of the committees in the harmonisation bargaining. However, the Greens have sought to keep the high standards of South Australia as they are.

We have acknowledged that the writing is on the wall and that we are not going to get to enjoy the current entitlements of five days each year as we currently do and certainly that those who are on committees will not necessarily be able to access them in the same way they currently do. However, the government has indicated that it will support the retention of this current activity—I emphasise—at no additional expense, in fact, at less expense (although I am not sure that that is in fact the honourable member's concern here) but at the rate of five days in the first year, three days in the second year and two days in the third year instead of at the rate of five days in each year.

The Hon. R.I. LUCAS: Can I ask the minister: given that the minister is supporting, so he says, national harmonised legislation, what will be the equivalent training responsibility in the other jurisdictions? Will it be five days, three days and two days as outlined in this amendment that he is supporting and, if it is not, what is the requirement in the other states?

The Hon. R.P. WORTLEY: At the moment in Victoria and Western Australia, it is five, five and five, I understand, but in the other jurisdictions there would be five, one and one.

The Hon. R.I. Lucas: That's what the bill was.

The Hon. R.P. WORTLEY: Yes, that's what the bill was—five, one and one. We believe that, in the best interests of making sure that workplaces are safe, reps should have adequate training, and this will equip them to identify issues in the workplace and hopefully reduce the number of injuries in the workplace.

However, we will not support the Hon. Ms Franks' amendment [Franks-3] 4, because that would exclude organisations that have fewer than 20 employees, and the person conducting the business or undertaking is not a person in respect of whom a supplementary levy or supplementary payment has been imposed by WorkCover under part 5 of the Workers Rehabilitation and Compensation Act. What that means is that, if we supported that and it became part of the bill, any organisation with fewer than 20 employees would only get the amount of training as the person conducting the business or undertaking wishes to give.

The Hon. R.I. LUCAS: Isn't that the current position? Is there not a distinction at the current time between small businesses and larger businesses? That is, if you are a small business, you are not required to provide at your expense this level of training for the health and safety representatives.

The Hon. R.P. WORTLEY: That is correct, but those provisions in the current act have been there since 1986. We believe it is time to move on and equip safety reps in organisations with less than 20 in our battle to fight injury and death within workplaces.

The Hon. R.I. LUCAS: First, can I clarify something? In the bill that the minister had introduced, what was the situation for small businesses? Were they to be excluded or were they going to have to undertake the five, one and one days' training?

The Hon. R.P. WORTLEY: In the model bill that exclusion was not there.

The Hon. R.I. Lucas: So a small business had to do five, one and one.

The Hon. R.P. WORTLEY: Yes, under the current model work health and safety legislation.

The Hon. R.I. LUCAS: Was that issue raised in the consultation from industry associations? Did they protest that small businesses were going to be hit with an impost? In the bill it is seven work days. The minister is saying that is not enough, let's make it 10. What the minister is saying to small business is that two full weeks—I guess it is over three years, isn't it? It is a week in the first year and then three days and two days in the subsequent years that a small business has to provide by way of training. Can I have clarified, was there opposition expressed by industry associations to this additional impost on small businesses in South Australia?

The Hon. R.P. WORTLEY: This model bill was negotiated over quite a number of years between the government employers and employee associations. It is a model work health and safety bill. However, when it came to this parliament, business put up a number of changes, in particular right to silence. We are putting that back in even though there was not a lot of consultation about that, but business wanted it, so we succumbed to it and agreed that we would put that in.

The unions themselves wanted to go back to the five, five and five. We opposed that but we saw some merit in giving five, three and two days. It is all very well to say 'what consultation?' A lot of consultation happened in the beginning when that model work health and safety bill was put into this parliament. If everybody had just abided by the fact that very often there are national organisations that are part of negotiations, the bill would have been passed and we would all be off working under the bill.

However, as I said, businesses had a position which we adopted in regard to the right to silence. There were some changes required for the union rights of entry. There was not a lot of public consultation about that. It was the fact that they wanted it and we ended up agreeing to it to get it through the parliament, so we thought it was appropriate that a number of the issues which had been agreed to nationally have been changed.

Mind you, they did not alter the pillars of the legislation. Actually the increase in training would probably help to some extent where work health and safety reps are now able to have five days in the first year, three days in the second year and two days in the third year. We think that is quite an appropriate position to have, so we support the Greens' amendment.

The Hon. R.I. LUCAS: That is all very nice, but we are not actually discussing the self-incrimination or right-to-silence amendments. My question was: was opposition expressed by any industry association to the removal of the exemption for small businesses in South Australia from the cost of training of health and safety representatives?

The Hon. R.P. WORTLEY: The provision to exclude organisations with under 20 employees was negotiated at the national level a couple of years ago.

The Hon. R.I. Lucas: All of it was negotiated nationally: was there opposition in South Australia to it?

The Hon. R.P. WORTLEY: It was also negotiated through the South Australian SafeWork SA Advisory Committee. So, consultation had taken place.

The Hon. R.I. Lucas: Was opposition expressed to this particular issue is my question. I know there was consultation. Was opposition expressed to this particular provision?

The Hon. R.P. WORTLEY: It went through the advisory committee and it was signed off and there was no opposition on the advisory committee.

The Hon. R.I. LUCAS: I was not just asking about the advisory committee because, as the minister knows, the advisory committee is a small body of select people. The minister has received considerable lobbying, as indeed have I and every other member in this chamber, from industry associations after the model bill was consulted on and people started looking at what were the implications. He has had representations, as he knows, from the MBA, the HIA and every other industry group in South Australia on the bill. As part of that—not as part of the advisory committee discussions—was opposition expressed to this particular removal of the exclusion for small business?

The Hon. R.P. WORTLEY: Look, no opposition has been expressed with regard to removing organisations under 20 employees. I do not see how much clearer I can get: there was no opposition. It passed nationally through the tripartite committee and through Safe Work Australia. It has came down to SafeWork SA; it has gone through its advisory committee. Even though you are saying that it is a small body, those people consult within the business community and the employer associations, and right up to this very minute no-one has expressed opposition to me at all in regard to that exclusion.

The Hon. R.I. LUCAS: I find that extraordinarily hard to believe. After the debate this evening and before we recommence tomorrow I will seek to consult the industry associations to get their views on this, because certainly in the discussions I had recently with the MBA it was all on the basis (and they have had a quick look—there had not been formal consultation with the industry associations about the Hon. Tammy Franks's amendment and whether or not the government was accepting it) my recollection—and I will correct the record if I am wrong—was that they understood that the position was that small businesses were treated differently to bigger business, which the minister has conceded is the current position here in South Australia.

Just so that we can understand what are the cost implications for small businesses as a result of this change, will the minister outline to the committee that, if a business person has 10 or 15 employees, clearly they have, in the first year, to allow their health and safety representative (let us assume they have only the one) to take five days leave for training. So that is clearly a cost. They lose 1/52nd of a year's work immediately. I presume the business owner has to find an appropriate course and pay for the attendance of that particular course, and travel to and from that particular course. Is that the proposed requirements under the government's bill?

The Hon. R.P. WORTLEY: An employer who has less than 20 employees naturally will now, if they have a health and safety rep—bearing in mind that many of these places do not have health and safety reps—be required to find an appropriate forum through which they can be trained. The employer associations like Business SA and probably quite a number of others, all run these courses. There are employee associations that run them, so they would only have to make a phone call and I am sure they could enrol their health and safety reps.

The Hon. R.I. LUCAS: That is not my question; I understand that. My question is about the legal requirement; that is, the small business employer has to obviously absorb the cost of losing the worker for the week, and must also pay for the attendance cost at wherever they can find the course, whether it is an employer association or whatever; is that correct?

The Hon. R.P. WORTLEY: That is correct and that would have been understood when this was negotiated nationally between the employer associations, the employee associations and also the government. It would have been understood that that was going to be the case. It also would have been understood when it came down to the SafeWork SA Advisory Committee who endorsed that position, and it would have been well and truly understood that that was the case. It is 10 past 10 and I think the staff require a break.


[Sitting suspended from 22:12 to 22:40]


The Hon. R.I. LUCAS: During the break I was able to conduct some quick consultations, but obviously I was not able to get hold of a lot of people at this hour of the night. It is only the hardworking parliamentary staff, parliamentary counsel and members of parliament who are still slaving away at this hour. Before we commence proceedings tomorrow I will probably get a little bit more feedback, but at least in the early stages of this I want to express our concern, on behalf of small business in South Australia, that Premier Weatherill and the Weatherill government are going to slug small business in South Australia with a significant new additional cost impact at a time when the state economy is struggling and struggling hard.

Small businesses in South Australia are struggling and what Premier Weatherill is going to do with this bill is, for the first time, say, 'If you are a small business owner and you have five workers in your small business out at Glynde in the marginal seat of Hartley, or wherever, and if those workers decide they want a health and safety representative, which they are obviously entitled to under the legislation, then you will have to add to your cost base by paying for not only losing a staff member for five days training in the first year, three days in the second year and two days in the third year, you will also have to pay for the cost of the course,' and the minister is unable to indicate what the cost of that course will be.

One would also assume they would have to pay the cost of travel and related expenses for that week for the health and safety representative. If you are in a regional area and the only training opportunity happens to be in Adelaide, then the cost of not only travelling to Adelaide but also, potentially, one would assume, the cost of accommodation whilst you are in Adelaide would have to be met by the employer as well.

The minister says small business in South Australia does not oppose this. I do not know which small business people he talks to, but I can assure the minister that it will become known to small business operators in South Australia that for the first time Premier Weatherill is saying to them, 'We are now going to add to your cost base in this particular way.' What is the problem that is being raised here? We have heard figures from WorkCover—and I do not have them with me, given the lateness of the hour, but I will try to get them before the debate tomorrow—in terms of the relative significance of injuries in the small business sector as opposed to the big business sector, basically talking in favourable terms about small businesses in terms of compensable injuries being incurred in small businesses.

I am working off memory in relation to that, but I recall the former chief executive officer giving evidence to the Occupational Health and Safety Committee of the parliament, I thought, along those terms, and I will have a look at it. From our viewpoint, at this stage, given that the Hon. Ms Franks is moving this amendment now (which we were not aware of), in an amended form, because the minister has indicated, speaking on behalf of Premier Weatherill, that they have taken a conscious decision to slug small business in South Australia with this additional cost and that is their intention, I indicate that we are going to oppose this particular provision.

We do so, as I said, in relation to the particular impact on small businesses. We obviously accept the need that has existed in South Australia for training as it has existed for health and safety representatives. It seems to have worked relatively well, and we are not sure what the problem is that Premier Weatherill is seeking to correct by this sledgehammer in relation to the cost base for small business in South Australia.

The Hon. R.P. WORTLEY: I must say I am quite surprised. This issue of organisations with under 20 employees has been in the public domain for around two years. The Hon. Mr Lucas has had this bill for well over a year, so it does come as a surprise that he has not actually got his head around this issue and does not understand that this issue was on the table. This has been endorsed by the national tripartite committee under Safe Work Australia. It has gone through the ministerial council. It has gone through SafeWork SA. All of them have representatives of employers, employees and government. I must say it concerns me that the Hon. Mr Lucas is now bringing this up as an issue.

Hopefully I will get the figures in regard to the injury rates and workers compensation rates in organisations with under 20 employees. Hopefully those figures will be available. Those figures will be there despite the fact that there is very little training for health and safety reps in organisations employing fewer than 20 people. We would be looking at a reduction in injuries in organisations with under 20 employees once work health and safety reps are trained.

I will add, though, that not every organisation will have a situation where a person wants to be a health and safety rep. You may find that in many of these organisations—and there are probably many thousands of them—the employees choose not to. It seems to be the case very often that small organisations do not have reps, but those employees who do want to elect a health and safety rep should have the right. Regardless of whether you are working in a small organisation or a large organisation, you should have the same right to training.

Bear in mind that this provision currently applies in the commonwealth, Queensland, New South Wales, the ACT, Northern Territory and Tasmania, so why should our organisations, with fewer than 20 organisations, be any different and getting different training from those jurisdictions? I look forward to the passage of this amendment and seek the support for the Greens amendment.

The Hon. D.G.E. HOOD: Family First will also be opposing the amendment. I think it will be an impost particularly on small business, precisely at the wrong time, if I might say so, given the current environment. Also, philosophically, I believe that mandated training often opens the door to training courses of limited or little value because the providers of the training courses know that a certain level of mandated training is required and therefore they will provide that training, no worries at all. The quality, of course, can be very questionable. For that reason, we will be opposing the amendment.

The committee divided on the amendment:

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

Majority of 1 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 73 passed.

The Hon. R.I. LUCAS: My amendments to clauses 74 and 75 are consequential and I will not move them.

Clauses 74 to 78 passed.

Clause 79.

The Hon. R.I. LUCAS: I will not be moving amendments Nos 56, 57 and 58 as they are consequential.

The Hon. T.A. FRANKS: I move:

Page 52, after line 10—Insert:

(5) Without limiting a preceding subsection, a member of a health and safety committee is entitled to take at least the prescribed number of days per year off work for the purposes of attending a course of training in work health and safety that is—

(a) approved by the regulator; and

(b) a course that the member of the health and safety committee is entitled under the regulations to attend; and

(c) subject to subsection (9), chosen by the member of the health and safety committee, in consultation with the person conducting the relevant business or undertaking.

(6) The person conducting a business or undertaking must, at the request of a member of a health and safety committee for that business or undertaking, allow the member of a health and safety committee to attend a cause of training under subsection (5) (after undertaking the consultation referred to in subsection (5)(c)).

(7) The person conducting the business or undertaking must—

(a) as soon as practicable within the period of 3 months after the request under subsection (6) is made, allow the member of a health and safety committee time off work to attend the course of training; and

(b) pay the course fee and any other reasonable costs associated with the member's attendance at the course of training.

(8) Any time that a member of a health and safety committee is given off work to attend the course of training must be with the pay that he or she would otherwise be entitled to receive for performing his or her normal duties during that period.

(9) If agreement cannot be reached between the person conducting the business or undertaking and the member of a health and safety committee within the time required under subsection (7) as to the matters set out in subsections (5)(c) and (7), either party may ask the regulator to appoint an inspector to decide the matter.

(10) The inspector may decide the matter in accordance with the preceding subsections.

(11) A person conducting a business or undertaking must allow a member of a health and safety committee to attend a course decided by the inspector and pay the costs decided by the inspector under subsection (10).

Maximum penalty:

(a) in the case of an individual—$10,000;

(b) in the case of a body corporate—$50,000.

(12) Subsection (5) operates subject to the qualification that if—

(a) no more than 20 persons are employed or engaged on a regular basis for the purposes of the relevant business or undertaking; and

(b) the person conducting the business or undertaking is not a person in respect of whom a supplementary levy or supplementary payment has been imposed by WorkCover under Part 5 of the Workers Rehabilitation and Compensation Act 1986,

a member of a health and safety committee may only take such time off work to attend a course of training as the person conducting the business or undertaking reasonably allows.

(13) For the purposes of this section, the prescribed number of days, in relation to a member of a health and safety committee, is—

(a) during the first year of the member's term of office—5 days; and

(b) during the second year of the member's term of office—3 days; and

(c) during the third year of the member's term of office—2 days,

(and if the member is re-elected at the end of a term of office then paragraphs (a), (b) and (c) will again apply during that new term of office).

I will move this amendment, but I will not seek to divide. Simply put, this extends the allocation of training of the five days in the first year, the three days in the second year and the two days in the third year to members of health and safety committees. I do not believe I have the support of the chamber, but I certainly want to put it on record.

The Hon. R.P. WORTLEY: We oppose this amendment. This amendment seeks to provide health and safety committee members with the same entitlements to five days of training per year, as proposed in amendment No. 1 for the HSRs at section 72 of the bill. The government it of the belief that, with the new provisions now for health and safety reps of five, three and two days for organisations with under 20 employees, we think that provides adequate training for health and safety reps.

Amendment negatived; clause passed.

Clauses 80 to 96 passed.

Clause 97.

The Hon. R.I. LUCAS: My amendments Nos 59 to 66 are consequential and I will not be moving them.

Clause passed.

Clauses 98 to 115 passed.

Clause 116.

The Hon. R.I. LUCAS: This package of amendments is really the substantive package of amendments, which I was happy to take a test vote on sometime yesterday in relation to union right of entry. Having lost the test vote, I think in the definitional clauses, I do not propose to move amendment No. 67.

Given that this is the substantive section, I place on the record for those innumerable Hansard readers that the Liberal Party is strongly opposed to this particular section—clauses 116 to 151. The substantive debate was conducted, as I indicated, sometime yesterday, I think in the definitional clause, where we discussed the issue of whether or not unions should have automatic right of entry. I put the Liberal Party's position in that earlier case, and all of those arguments equally applied to these particular clauses but, as I said, given that we lost that debate, I do not intend to repeat the argument.

Clause passed.

Clause 117.

The Hon. J.A. DARLEY: I move:

Page 64, lines 18 and 19—Delete subclause (2) and substitute:

(2) The WHS entry permit holder must reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health or safety of a relevant worker.

(3) Furthermore, a WHS entry permit holder must—

(a) give consideration as to whether it is reasonably practicable to give notice to the Executive Director about the proposed entry before exercising a power under subsection (1) in order to provide an opportunity for an inspector to attend at the workplace at the time of entry; and

(b) if it is reasonably practicable to give notice to the Executive Director about the proposed entry, comply with any requirement prescribed by the regulations in relation to giving such a notice under this section.

(4) The Executive Director must establish and maintain a policy that relates to the circumstances when inspectors will attend at workplaces when notified of the proposed entry of WHS entry permit holders under this section.

(5) The Executive Director must ensure that the policy is published on a website that is maintained or used by the Department and the Minister must cause a copy of the policy to be laid before both Houses of Parliament.

(6) If a WHS entry permit holder exercises a power of entry under this section without being accompanied by an inspector who has attended at the workplace under subsection (5)—

(a) the WHS entry permit holder must furnish a report on the outcome of his or her inquiries at the workplace to the Executive Director in accordance with the regulations; and

(b) on the receipt of a report under paragraph (a), the Executive Director must give consideration to what action (if any) should be taken on account of any suspected contravention of this Act outlined in the report.

Page 65—

Lines 1 to 4—Delete subclause (2) and substitute:

(2) However—

(a) the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and

(b) the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

After line 38—Insert:

(6) However, the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder).

Page 66, line 22—Delete '$10,000' and substitute '$20,000'

Clause 172—Delete this clause and substitute:

172—Protection against self-incrimination

A person is excused from answering a question or providing information or a document under this Part on the ground that the answer to the question, or the information or document, may tend to incriminate the person or expose the person to a penalty.

Page 83—

Line 24—Delete 'warn' and substitute 'advise'

Lines 26 to 29—Delete subclause (2)

Page 115, after line 37—Insert:

(2a) In connection with the operation of subsections (1) and (2)—

(a) the Small Business Commissioner must be consulted before a code of practice is submitted to the Minister under this section so that the Commissioner may assess whether the code of practice would affect small business if implemented and, if so, provide any comments or advice that the Commissioner considers to be appropriate in the circumstances (including that the code be varied); and

(b) if the Small Business Commissioner recommends that a code of practice be varied, the Minister may make such a variation without the need to adopt the process envisaged by subsection (2) (but may undertake such consultation in relation to the matter as the Minister thinks fit).

New Division, page 117, after line 31—Insert:

Division 4—Reviews

277—Reviews

(1) The Minister must cause a review of the operation of this Act to be conducted as soon as practicable after the expiry of 1 year from its commencement.

(2) The review under subsection (1) must include a specific report on the extent to which inspectors have attended at workplaces under section 117 and an assessment of the operation and effectiveness of the policy established by the Executive Director under that section.

(3) The Minister must then cause a second review of the operation of this Act to be conducted as soon as practicable after the expiry of 3 years from its commencement.

(4) The results of a review under this section must be embodied in a written report.

(5) The Minister must, within 6 sitting days after receiving a report under subsection (4), cause a copy of the report to be laid before both Houses of Parliament.

Part 7 of the bill relates to workplace entry by union officials or work health safety entry permit holders. At the outset, members should bear in mind that this amendment relates to union right of entry without notice; that is, situations where permit holders can, in essence, turn up to a worksite unannounced. It does not affect other provisions relating to entry on the grounds of consulting and advising workers, which requires at least 24 hours notice.

Clause 117 enables union officials, acting in their capacity as entry permit holders, to enter a workplace for the purposes of inquiring into a suspected contravention concerning a relevant worker; that is, a worker who is a member, or eligible to be a member, of a relevant union. The first point of difference between the amendment and the bill relates to the suspected contravention itself.

The amendment provides that the permit holder must reasonably believe that the suspected contravention has occurred, or is continuing, and involves a risk to the health or safety of a relevant worker. This is much narrower in scope than the bill itself, which simply provides that a work health safety entry permit holder may enter a workplace for the purpose of inquiring into a suspected contravention of the act that has occurred, or is occurring, and that relates to or affects a relevant worker.

Further, the amendment requires the permit holder to give consideration to the question of whether it is reasonably practical to give notice to the executive director about the proposed entry in order to provide an inspector an opportunity to attend at the workplace. The amendment has been drafted in a manner that reflects that in some instances it will be impractical, or perhaps even impossible, to give such notice. Having said that, where it is reasonable to do so, an entry permit holder will be expected to give notice of the proposed entry.

The executive director will be responsible for establishing and maintaining a policy that relates to circumstances in which inspectors will attend at workplaces in cases of suspected contraventions. That policy will need to be published on a website so that it is readily available to anybody who may wish to view it and it must also be laid before both houses of parliament.

Where an entry permit holder exercises power of entry without being accompanied by an inspector, there will be a further requirement that they prepare a report to be furnished to the executive director on the outcome of their inquiries at the workplace. The executive director will then be required to give consideration to what, if any, action should be taken on account of any suspected contravention outlined in that report.

Whilst on the face of it this amendment may appear overly cumbersome, it is in fact fairly straightforward. It focuses on the apparent need for union right of entry without notice and places conditions on both union officials and SafeWork SA with respect to reporting. It provides a measure of transparency and accountability both in terms of entry by union officials and the performance of SafeWork SA.

The amendment goes hand in hand with a subsequent amendment that I will be moving, which will make union right of entry the subject of a review which will enable this parliament to assess whether these provisions are operating appropriately or whether indeed they are creating the sorts of problems that some groups anticipate.

The review itself will take place after one year from the commencement of the relevant provisions and, as I have alluded to, will provide an opportunity to assess any further need for amending the legislation with regard to union right of entry. Some concern has been raised, particularly by the building industry, over the lack of any direct reference in the bill specifically prohibiting union officials stopping work during their entry.

I have discussed this matter with the government and have been assured that the intention of these provisions is not to stop work on a site during the course of an investigation into a suspected contravention unless it is reasonable in the circumstances to do so.

Clause 146 of the bill provides that an entry permit holder must not intentionally and unreasonably delay, hinder or disrupt any person or disrupt any work at a workplace or otherwise act in an improper manner. My understanding is that this clause is intended to address the issue of union officials who misuse powers of entry.

It would be useful if the minister would clarify the intent of these provisions and confirm that clause 118 is not intended to be interpreted in such a way as to allow entry permit holders to effectively stop work on a site during the course of an investigation, particularly for matters unrelated to any contravention. More importantly, these provisions are not to be used for fishing expeditions or as a means of drumming up support for unions, nor are they intended to be used for industrial purposes. These are matters which serve only to trivialise safety matters.

There are two further amendments that I will be moving in relation to union right of entry, and they relate to the ability of permit holders to require copies of documents to be provided during an investigation. My approach on the matter of union right of entry was to consider it from a practical point of view and to implement measures that would alleviate some of the concerns raised by industry.

If a permit holder goes onto a site accompanied by an inspector, then really the role of the union official will come to an end in so far as the inspector will be able to determine whether or not there is a contravention that warrants further action. In these instances, if copies of documents are required, it will be for the inspector to determine.

If on the other hand a permit holder goes onto a site unaccompanied by an inspector and they find a breach, particularly where that breach exposes workers to injury, then one would think that the next course of action would be to report this to SafeWork SA. Again, it is logical that SafeWork SA would then investigate that breach. If for whatever reason the permit holder does not notify SafeWork SA of the breach but undertakes the investigation themselves, they will still be required to report back to SafeWork SA, which will then need to make a determination as to what action, if any, will be taken. In these instances permit holders will be expected to conduct their investigations appropriately without causing undue disruption at the worksite.

It is important to remember that union officials can have conditions imposed on their permits and their permit can be revoked where those conditions are breached. A union official can also be subject to a penalty which under a further amendment will be increased from $10,000 to $20,000.

It is certainly my expectation that the entry permit system will be properly policed and that breaches of permits will be treated seriously by the appropriate authority. All of these amendments combined are intended to provide some assurance to business that the misuse or abuse of these powers by union officials will not be tolerated. The review of these provisions after a year's time will, as I said, allow us the opportunity to assess any further need for amending the provisions and, if need be, remove union right of entry from the legislation altogether.

Union officials are being put on notice that this is their opportunity to demonstrate that they will do the right thing, that the concerns expressed by some industry sectors will not become a reality. I note that the Hon. Rob Lucas will be proposing a change to this amendment, which would mean that the contravention involves an ongoing risk. Whilst I do not oppose what he is trying to achieve, I am still concerned that the addition of 'ongoing' will create ambiguity or at least further argument as to whether there is a risk.

In closing, I maintain the position that SafeWork SA also needs to lift its game and ensure that it is at the coalface, ensuring that businesses are complying with the legislation and that accidents are being prevented. As I said in my second reading contribution, if this means that it needs more inspectors and more resourcing, then that needs to be addressed by the government. This legislation will only work if it is backed by the best practice and a solid commitment from both the government and SafeWork SA. A change in the culture and attitude of SafeWork SA has to be the starting point. I urge all honourable members to support this amendment.

The Hon. R.P. WORTLEY: I thank the Hon. John Darley. Clause 118 lists the rights that a work health and safety entry permit holder may exercise upon entering a workplace to inquire into a suspected contravention. The clause allows an entry permit holder to inspect anything relevant to the contravention and to consult with workers. However, clause 146 will always be relevant in this context. Clause 146 prohibits a work health and safety entry permit holder from intentionally and unreasonably hindering or obstructing any person or disrupting any work while at a workplace or from otherwise acting in an improper manner when exercising or seeking to exercise entry rights.

Conduct by a permit holder that would hinder or obstruct a person would include action that intentionally and unreasonably prevents or significantly disrupts a worker from carrying out his or her normal duties. A request by an entry permit holder to cease work in situations where it is clearly unnecessary to address the relevant safety concerns would be considered disruptive if the entry permit holder insisted on the cessation of work where it was clear that this was not necessary and the request was unreasonable.

We support the Hon. Mr Darley's amendments. The introduction of the work health and safety entry permit system through the Work Health and Safety Bill provides South Australia with an opportunity to have more trained people attending worksites to address safety concerns. With the thousands of workplaces in South Australia, the more people addressing safety risks the better. Therefore, as the ultimate goal is workplace safety, I am comfortable with ensuring that SafeWork SA puts policies and procedures in place to ensure the smooth and efficient application of these provisions in South Australian workplaces.

I have consulted with the union movement over this provision, and they have unanimously given their support to this because they themselves know that they have trained work and health safety permit holders who act in a very responsible way. We have a very good relationship between employers and employees in this state and that is shown by the fact that we have much less industrial disputation in this state than anywhere else in the country. I am quite sure that unions will act in a responsible way. They have no reason not to and they were quite happy for the government to support the Darley amendments, so I seek support for them.

The Hon. R.I. LUCAS: The substantive debate on these related issues has been conducted, but I do want to briefly refer to just one or two aspects because they are raised by the contributions from the Hon. Mr Darley and the honourable minister in relation to union right of entry.

Can I firstly say that the minister refers to the provisions of clause 146 which say that a WHS entry permit holder—so let's take a union rep—cannot delay, hinder or obstruct any person or disrupt work at a workplace. He says that if that is the case, then action will be taken. The clear evidence from the MBA and other industry groups based on the operations of union right of entry in other states gives the lie to that particular claim from the minister.

I gave examples yesterday in relation to an ongoing dispute between, I think, the CFMEU and the Abigroup in Queensland and the CFMEU and Grocon in Victoria. In relation to the Abigroup dispute in Queensland, there was a dispute over provisions of a valid enterprise agreement which still had two years to run and which had been endorsed by the union. The union wanted changes; the employer said, 'No, we've got a valid agreement.' On one day alone—and this continued for some time—the union entered the worksite on four separate occasions to conduct meetings in relation to separate supposed health and safety issues.

The minister says, 'Well, if that's the case, the company Abigroup can take the union to court.' The reality is that in the context of (a) the expense and the cost and (b) being able to prove in the industrial jurisdiction these sorts of issues given the wording of the legislation, many employer groups just shake their heads and say, 'Well, there's precious little that we're able to do with it.'

The minister quotes the soothing words of 146 to convince people that there is this punitive power, but I have seen the example of a union representative in Western Australia, and what I would call the 'rap sheet' in terms of unreasonable entry to worksites and decisions taken against that particular unionist who continued. On occasions he was penalised in Western Australia but continued to get right of entry and on many occasions won particular cases over there, but continued to disrupt, even though supposedly the employers in those particular cases had rights to take action against the union representative who was unreasonably disrupting the worksites in Western Australia.

So, that is the first point I would make in relation to this issue. The second point (and I will not repeat all the arguments from yesterday) is that our position is that we oppose automatic union right of entry.

The Hon. Mr Darley's amendments in relation to this provision we think are well intentioned, but in the end our advice from industry groups is that they will not achieve what the Hon. Mr Darley believes they will achieve, that is, some genuine compromise between the positions adopted by the government, the Liberal Party and industry groups on this issue. For example, in relation to the drafting of this first amendment, it states:

Furthermore an entry permit holder must give consideration to whether it is reasonably practical to give notice to the executive director.

The industry groups have said that what the union reps will do—some but not all—is just say, 'Look, it wasn't reasonably practical because my battery went dead,' or, 'I left my phone at home,' or, 'There wasn't phone coverage at the time and I had to enter the worksite to put a particular point of view.'

The practitioners in the industry who have experienced a disputation with union representatives on various worksites say that the drafting here is so broad that it will be impossible for any industry group to actually prove otherwise and to take action against the representative. It will be interesting to see, after the period of time, what eventuates, whether the intentions of the Hon. Mr Darley are met or the view of industry associations and their leaders are met, in that they believe that these particular provisions are drafted so broadly that in the end they will not count for much.

Subclause (6) of the amendment says that if the entry permit holder says, 'Okay, look I couldn't have the inspector come in with me because my phone battery had gone dead,' or whatever it happened to be, and enters the worksite without the inspector, they have to furnish a report on the outcome. The industry association has put the viewpoint that everyone will know exactly what the union representative is going to put in his or her report in relation to the worksite.

Business owners and operators are not taking the view that the union representative is likely to take the position of the business owner against the workers in relation to the particular issue. Clearly, they are not there and are unlikely to be the independent referee or umpire in relation to a difference of opinion on a work safety issue in the workplace between the employees and the employer.

That is fair enough; the unions, as you would well know, Mr Chairman, are there to represent the workers, although in this case, as we know, the workers might not want the union person to be there and there might not be any union workers at the worksite, but the government's position is that the union can insert itself into this particular equation, even if all the workers do not want to have anything to do with the union or a union representative on the site.

The unionist can insert themselves into this particular issue if he or she so chooses. Then the executive director of SafeWork SA will get receipt of this report, then the executive director of SafeWork SA will give consideration to what action should be taken on the account of any suspected contravention. I will be happy to be proved wrong but, if in 12 months time, SafeWork SA has taken action against any union representative, I will be happy to send a small gift to the executive director in congratulations.

That is because I would be mightily surprised if the executive director of SafeWork SA was to successfully take action under these provisions against a union representative who has entered a worksite without giving the appropriate notice. So time will tell. I am big enough and ugly enough to stand up in 12 months time to say SafeWork SA proved me wrong and they managed to successfully prosecute at least one union person who contravened the sections of this particular new amendment, but I will not be holding my breath in relation to the issue.

I understand the Hon. Mr Darley's position. It is well intentioned but we do not believe that it is going to be successful, and industry leaders do not believe it is going to be successful. It still allows for, as I said, union representatives to insert themselves in a situation where all the workers have chosen not to be a member of the union and do not want the union to be involved. The Hon. Mr Darley's amendment is saying, supported by the government, 'Too bad, the union should be able to'. Let us bear in mind it might not be just one union; it might be a number of them who claim coverage, and insert themselves into this particular situation and seek to take a role in whatever work, health and safety issue there might be. I move:

Page 64, lines 18 and 19—

New subclause (2)—delete 'and involves a' and substitute:

and involves an ongoing

New subclause (6)(b)—delete 'outlined in the report'

The Hon. Mr Darley has referred briefly to the first of those amendments. These have been raised within the last few days and, again, I thank parliamentary counsel for the hard work in turning around very quickly amendments which could be considered by our party room. The first one involves a concern that a couple of industry groups had about the drafting of the amendment in relation to the wording from the Hon. Mr Darley, which says:

...must reasonably suspect before entering the workplace that the contravention has occurred or is continuing and involves a risk to the health or safety of a relevant worker.

The concern that has been raised is that the 'has occurred' is past tense and it was viewed that it was clearly not the intention of the Hon. Mr Darley that, if a significant injury or workplace incident had happened some years ago and had been resolved, that was not an issue that could be used on an ongoing basis by a union rep to justify entry. So this amendment from parliamentary counsel is seeking, in essence, to try to ensure that it is something that has happened recently and is an ongoing risk, or is happening at the moment and is an ongoing risk to the health and safety of a relevant worker.

Bearing in mind if something has happened some time ago, and it is done and dusted but new evidence has arisen, then there is plenty of time in relation to bringing in an inspector from SafeWork SA or whatever it might happen to be. We are really talking about the circumstances which might necessitate the involvement, at relatively short and quick notice, of a union representative.

So this drafting is really intended to at least prevent the opportunity for a union representative to use something which has occurred, been done and dusted a couple of years ago and is not an ongoing risk to the health and safety of a relevant worker, and that that should not be used as an excuse to justify entry to the worksite. That is the first amendment.

The second one is an amendment to (6)(b). This was again raised with me by the MBA, I think. They had a very strong concern, from their viewpoint, and I have had parliamentary counsel draft an amendment. What they are saying is that on the current drafting the executive director gives consideration to this report, which has been written by a union representative, of any suspected contravention of the act. The MBA has the view, as I indicated earlier, that it is unlikely the union is going to outline in its report any contravention by a worker or employee; it is more than likely that it will be an allegation of a contravention by the employer.

What the MBA is saying is that SafeWork SA or the executive director should look at suspected contraventions of the act not only by the employer but, indeed, by anybody else, whether it be a worker or an employee. SafeWork SA should be looking at any contravention of the act by an employer, an employee, or anybody. That should be the role of the regulator, or the inspector.

I suspect that would be the case from SafeWork SA's viewpoint but the MBA are concerned at the use of the words outlined in the report and I am seeking to remove those to make it quite clear that the executive director will consider the allegations in the report, which would generally be against the employer, one would assume, but can also consider any other contraventions that (perhaps) the employer might make against the workers and then make a judgement about suspected contraventions.

So, for those reasons I am moving the second amendment to the Hon. Mr Darley's amendment. I do not think they are extraordinarily controversial amendments and I would hope the government and the Hon. Mr Darley would be prepared to support them.

The Hon. R.P. WORTLEY: The Hon. Mr Darley and I were just discussing the amendments of the Hon. Mr Lucas. We are trying to work out what our position is going to be. What I seek is not to report, but give us five minutes. We are having detailed discussions out there.

The CHAIR: I have an amendment by the Hon. Mr Lucas to amend the Hon. Mr Darley's amendment.

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

The CHAIR: Are you requesting five minutes?

The Hon. R.P. WORTLEY: Five minutes.

Members interjecting:

The CHAIR: Order! The Hon. Ms Franks. Hopefully you have at least a five minute contribution. Tell us anything.

The Hon. T.A. FRANKS: I do have a question of clarification for the mover of the amendment, the Hon. Rob Lucas. He indicated that he was not inclined to support the amendment that we are currently considering in the name of the Hon. John Darley, but he is moving to amend that. What I seek to find out from the mover, the Hon. Rob Lucas, is whether, should his amendments be accepted, he will indicate that would change his position on supporting the Hon. John Darley's amendments?

The Hon. R.I. LUCAS: I do not recall indicating. If I did, I did so in error. Our position is that we support removal of union right of entry. We have lost that argument. We think that the amendment being moved by the Hon. Mr Darley is not really going to achieve what was intended, and that is certainly what I have said. I think I said it was well intentioned as well, but ultimately I am not sure that I have actually said what our position is on the amendment.

With the amendments that we are proposing, we would probably either support or not oppose the amendment. We are assuming the numbers are there in the chamber anyway to support the package, so our position on the amendment is largely academic, I suspect. In relation to our position, we would believe with our amendments it is a marginal improvement on the existing bill, so we would either support or not oppose and are unlikely to divide against it.

The CHAIR: Are there any further contributions?

The Hon. G.E. GAGO: There are further discussions occurring. We have a choice: we can either just allow a couple of minutes for those discussions to ensue or—

The Hon. R.I. LUCAS: Suspend the house.

The Hon. G.E. GAGO: —or we can report progress and suspend the house.

The Hon. R.I. LUCAS: Come back at 1 o'clock.

The Hon. G.E. GAGO: Well, until the ringing of the bells.

The Hon. R.I. LUCAS: You're the government.

The Hon. G.E. GAGO: I am just saying, if it is the will of this chamber, if we can allow a couple of minutes. I think the minister is ready to come back into the chamber.

The CHAIR: I hope so. The honourable minister.

The Hon. R.P. WORTLEY: Thank you, Mr Chair. The government supports the Darley amendments, but does not support the Lucas amendments.

The committee divided on the Hon. R.I. Lucas's amendments to the Hon. J.A. Darley's amendments:

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

Majority of 1 for the noes.

Amendments to amendments thus negatived.

The Hon. J.A. Darley's amendments carried; clause as amended passed.

Clause 118.

The Hon. J.A. DARLEY: I move:

Page 65, lines 1 to 4—Delete subclause (2) and substitute:

(2) However—

(a) the right of a WHS entry permit holder to require copies of a document under subsection (1)(d) is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder); and

(b) the relevant person conducting the business or undertaking is not required under subsection (1)(d) to allow the WHS entry permit holder to inspect or make copies of a document if to do so would contravene a law of the Commonwealth or a law of a State.

This amendment relates to work health and safety entry permit holders' ability to obtain documents at a workplace. I have already outlined the purpose of the amendment; that is, where an inspector attends a worksite after having been notified of a suspected contravention by a permit holder, the permit holder's ability to require documents will be subject to any direction given by the inspector. As already mentioned, as I see no reason as to why a union official would need copies of documents where an inspector is present, so the ability to do so really becomes redundant. I ask honourable members to support this amendment.

The Hon. R.P. WORTLEY: The government supports the amendment.

Amendment carried; clause as amended passed.

Clause 119 passed.

Clause 120.

The Hon. J.A. DARLEY: I move:

Page 65, after line 38—Insert:

(6) However, the right of a WHS entry permit holder to require copies of a document under this section is subject to any direction that may be given by an inspector (which may include a direction that copies of a document not be required to be made and provided to the WHS entry permit holder).

This is a consequential amendment.

The Hon. R.P. WORTLEY: We agree to the amendment.

Amendment carried; clause as amended passed.

Clauses 121 and 122 passed.

Clause 123.

The Hon. J.A. DARLEY: I move:

Page 66, line 22—Delete '$10,000' and substitute '$20,000'

The amendment increases the maximum penalty that applies to permit holders who contravene a condition imposed on their permit by the authorising authority from $10,000 to $20,000. The purpose of the amendment is to highlight to union officials acting as permit holders that breaches of permit conditions will be taken seriously, and that they will face hefty penalties if they fail to comply with those conditions. I ask honourable members to support this amendment.

The Hon. R.P. WORTLEY: The government supports the amendment.

Amendment carried; clause as amended passed.

Clauses 124 to 153 passed.

Clause 154.

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

Page 75, after line 30—Insert:

(aa) in the case of a delegation to a person—may only be made to a public sector employee within the meaning of the Public Sector Act 2009;

This is a relatively simple matter. On the drafting of clause 154, a reading of the clause states:

The regulator may, by instrument in writing, delegate to any body or person...a power or function under this Act.

One or two of the industry associations were concerned that this allowed the regulator to delegate to somebody outside of SafeWork SA or a public sector employee within the meaning of the Public Sector Act—so, some other government agency—a power that was held by the regulator. One of the industry associations in particular was concerned that SafeWork SA might delegate to a union various powers under this.

Clearly, when one reads it, that is possible. The legal advice is that 'any body or person' means what it says. 'Any body or person' has no restriction in terms of it being a public sector employee. I would have assumed that, in the normal course of events, that is what is intended.

Normally, the regulator, the executive director, would delegate to his or her deputy or to some other senior officer, or an inspector or something like that, within SafeWork SA—maybe on occasions some other government agency (I do not know whether crown law is delegated some responsibilities or somebody else), but another public sector employee.

I would have thought it should be obvious that that is what is intended, and my amendment is, as I said, simply seeking to make it clear that the delegation should be to a public sector employee, not to somebody outside the public sector.

The Hon. R.P. WORTLEY: The government opposes the Hon. Mr Lucas's amendment. Clause 154 provides:

The regulator may, by instrument in writing, delegate to any body or person...a power or function under this Act.

The proposed amendment seeks to clarify that this delegation could only be made to a public sector employee. It will prevent, for example, delegations to persons who could provide expert technical assistance during an investigation but who are not public sector employees. The current provision in this act is consistent with the provisions in the current act.

The Hon. R.I. LUCAS: What powers would the regulator delegate to a technical witness? I can understand technical witnesses being employed to provide evidence, but what delegated power would SafeWork SA be delegating to an expert witness?

The Hon. R.P. WORTLEY: SafeWork usually delegates power to an expert to accompany a SafeWork inspector.

The Hon. R.I. LUCAS: Is the minister prepared to take on notice and provide by way of a letter—and I do not intend to hold up the committee—an indication of the number of examples of expert witnesses who have been delegated and what particular powers have been delegated, and perhaps an explanation? Why is it that, if an inspector is attending a worksite, an expert witness who is attending with that inspector requires any delegated authority? One would assume they are not seizing documents or evidence, or whatever else it happens to be, that they are operating underneath the authority of the inspector who has those powers.

I would not expect the minister to have that information available with his officers this evening, but is he prepared to take on notice and provide information to me and anybody else who is interested examples of where the delegated authority has been given to someone other than a public sector worker?

The Hon. R.P. WORTLEY: I give an undertaking to the honourable member that SafeWork will provide him with a letter outlining the circumstances in which this will occur.

The CHAIR: The Hon. Mr Lucas, you are satisfied with that undertaking?

The Hon. R.I. LUCAS: Yes.

The Hon. T.J. STEPHENS: Minister, when will you provide that letter?

The Hon. R.P. WORTLEY: SafeWork SA executives are here, so I imagine very shortly.

The Hon. T.J. Stephens: Shortly means tomorrow.

The Hon. R.P. WORTLEY: Within a week.

The Hon. T.J. Stephens: Within a week?

The CHAIR: Well, tomorrow is three minutes away, the Hon. Mr Stephens. Are you happy with those undertakings?

The Hon. R.I. LUCAS: I am happy to have this issue voted on now, but I would have thought that, as we are reconvening at 11 in the morning, it may be possible—and we are not obviously going to get through all the committee stage before tonight—now that it is 12 o'clock, it would seem to be getting to a sensible hour where members might like to consider reporting progress so that we can reconvene at 11 in the morning. Ultimately, that is a decision for members of the committee, but the witching hour of 12 o'clock would seem to be a very sensible time to report progress.

The CHAIR: On Halloween?

The Hon. R.I. LUCAS: Exactly, and those who went home through the dinner break will know how many little munchkins descended upon the front doors looking for candy. I am happy to see this issue voted on. I hope that SafeWork SA might be able to provide some information, maybe not comprehensive information, that might be available in a week or so by 11 in the morning and we can continue the debate on these clauses when we reconvene.

The CHAIR: So you are proposing that we proceed with your amendment as moved?

The Hon. R.I. LUCAS: I am happy with that, yes.

The CHAIR: Minister?

The Hon. R.P. WORTLEY: Yes.

Amendment negatived; clause passed.

Progress reported; committee to sit again.

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