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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-05-13 Daily Xml
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Return to Work (COVID-19) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 April 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (18:01): I rise to speak to the bill, and indicate that I will be the lead speaker for the opposition. The Labor Party applauds the Greens for their efforts to support critical workers and essential services during the COVID-19 emergency. This is a far cry from the Liberal government, which has taken many opportunities during this emergency to make it harder, or not support workers.

The government has not supported reasonable return to work proposals. The government sought to strip job security provisions from enterprise agreements. This includes parts of enterprise agreements that protect front-line and disability workers from job cuts and privatisation. The government has continually extended 24-hour shop trading, allegedly in response to COVID-19, but then refuses to support better protection for retail workers, check-outs, people who stock shelves, cleaners and managers.

The government sought to suspend traineeships and apprenticeships for months beyond these emergency measures, and the government continues to try to gut out labour hire legislation that protects some of the most vulnerable workers. In this context I applaud the Greens for bringing the bill to the parliament. However, the Labor Party has introduced legislation—that I have spoken about today—and has introduced legislation previously in the other place, and the Labor Party will be voting in preference for our scheme.

This position was formed after consulting over a number of weeks with organisations that represent workers. As I indicated, Labor has previously introduced COVID-19 return to work bills in the other place, and now in this place. Although Labor welcomes the efforts of the Greens we will not be voting for the legislation, noting that we prefer our own bill.

The Hon. C. BONAROS (18:03): Can I indicate our support for the second reading of the bill. It means the link between the suspected or diagnosed COVID-19 in the workplace does not need to be established; it is automatically presumed on account of the face-to face nature of the work of our front-line workers in SA. It means unnecessary, expensive and stressful legal proceedings can be avoided. It means front-line workers can instead go on with the mammoth task at hand with a little more ease. In real terms it applies to those front-line workers who would find it difficult, if not impossible, to maintain social distancing from the public at work. They should not have to choose between a pay cheque and potentially exposing others to COVID-19 if they have a cough.

Designated workers have played a pivotal role in preventing the further spread of COVID-19 within our community, and I for one am very grateful for all they have done and continue to do each and every day. They are the front-line workers who have bravely risked their own health during the pandemic for the benefit of others, often to the detriment of themselves and their families.

I remind honourable members of a report just overnight that a railway ticket officer in the UK died from COVID-19 after being spat and coughed at at work, which was extremely disturbing. It is an example of a worst-case scenario, a scenario that would have crossed the minds of many of the front-line workers we are talking about today, yet they continue to risk their own health and safety for the greater good. They do so, having even temporarily relocated from their families so that they are not exposed to the same risks.

I note that the opposition also has a bill, and I am sure we will be working through these issues in the chamber in the coming weeks. With those words, I indicate our support for the second reading of this bill and look forward to further debate.

The Hon. R.I. LUCAS (Treasurer) (18:06): The government, as I have indicated publicly, strongly opposes this bill and other pieces of legislation proposed by members of the Labor opposition. Put simply, this bill and the other bill will seek to amend the Return to Work Act to reverse the onus of proof in the act for COVID-19 claims. This would simply mean that workers who are diagnosed with COVID-19 are presumed to have contracted the disease from their employment unless ReturnToWorkSA or the employer, in the case of the Crown or self-insurers, can prove otherwise. The current law is that, as with other workers compensation claims, a worker who is diagnosed must prove on the balance of probabilities that the disease arose from employment.

In relation to this particular bill, the range of employees proposed to be covered, if I can summarise briefly, are all emergency services workers, including but not limited to CFS, MFS and SES; certain members of the police force who have face-to-face contact (most of these remaining categories are those who have face-to-face contact); employees who work in the healthcare industry or a healthcare service, passenger transport services or the freight transport industry, the aged-care industry or an aged-care service, the childcare industry or a childcare service and the education industry or an education service, including preschool, school and tertiary education; employees who work in the retail industry (which is a very large group); employees of courts and tribunals; employees employed in correctional services institutions or youth training centres; employees who work in the hospitality industry or hospitality service (which, together with the retail one, would be an extremely broad category); employees who work in the disability care industry; employees who work in the industry or a service of provision for refugees, half-way houses, homeless shelters, etc.; employees who work in library services; and any other persons who work in a service or industry prescribed by regulations.

So it is an extraordinarily wide category of employees. We are not just talking about what is most often mentioned—front-line services such as doctors and nurses—we are talking about an extraordinarily wide range of employees. This bill also includes another extraordinary provision which states that a worker is entitled to weekly income support payments because they have been diagnosed with COVID-19 will continue to be entitled to income support for a further three weeks after the worker returns to work or ceases to be incapacitated by the injury.

What this is saying is that an insurer or employer would have to pay a worker who is fit to work, has returned to work, an additional three weeks' pay on top of any remuneration they are already paying to the employee. I guess those who are supporting or moving the legislation need to explain what the particular problem is in the first instance, that is, how is the current system failing?

There seems to be this assumption that because workers are placing themselves in difficult and dangerous situations, depending on the nature of their particular work, in some way they are being left high and dry; that is, they are not being covered or compensated by the current workers compensation scheme. I think the challenge to those who want to see this legislative change is that they need to indicate the evidence for that particular claim. It cannot just be the vibe or the feeling or, 'This is the issue.' Someone actually needs to describe what is the evidence for the particular problem that the legislation seeks to resolve.

As of the first week of May, the Office of the Commissioner for Public Sector Employment advises that there had been no COVID-19 claims at that particular time made by public sector employees. ReturnToWorkSA have advised that they have received four COVID-19 claims. At this stage, none has been rejected, one has been accepted and the other three are being determined. These are all obviously, given the nature of the pandemic, only recent claims, so unlike some of the other workers compensation claims, which sometimes take years winding their way through the Employment Tribunal and various other jurisdictional issues. At this stage, not one COVID-19 claim has been rejected. That is not to say there will not be more COVID-19 claims, but at this stage there is just no evidence to indicate where the current system is actually failing.

The other issue I think for those who support this legislation is that there was not similar legislation in relation to previous pandemics such as SARS (Severe Acute Respiratory Syndrome), MERS (Middle East Respiratory Syndrome) and a range of others. There were not, under the former Labor government, any endeavours to introduce similar legislation in relation to the capacity for people to contract those particular viruses and to be injured or to lose their life as a result of those pandemics. I think that is the first issue and that people have to actually take those issues up and explain why it is that the current legislation, which was put in place by the former Labor government and supported by then Liberal opposition, is not meeting the challenge confronting us at the moment.

Very few pieces of legislation I have seen have developed or resulted in such widespread and vehement opposition from right across the board. Given the time, I am not in a position to read through all the submissions. It may well be that when we come to debate the Labor Party legislation at a later stage we might be able to indicate the strength and the vehemence of the opposition. But let me just indicate, for example, the communication from the Australian Small Business and Family Enterprise Ombudsman, Ms Kate Carnell AO, who gave her opinion on both bills—both the Labor bill and this particular bill. Kate Carnell indicated:

Small businesses all over the country are doing their utmost to protect the health of their employees and keep them employed through these difficult times. COVID-19 is highly communicable and suggesting that if an individual contracts the disease, their workplace is undoubtedly the source in the absence of any evidence entirely ignores the very real possibility of infection elsewhere. Such an assumption places unfair onus and significant additional burden on small business operators.

Small business employs hundreds of thousands of South Australians and legislating these proposals would lead to small businesses having to reconsider the ongoing employment, and engagement of staff. With Australia's unemployment rate set to rise, legislation which disincentivises hiring staff would be an act of self-harm on behalf of the South Australian Parliament.

That is the Australian Small Business and Family Enterprise Ombudsman giving her independent opinion on the legislation. I will refer briefly to some of the others in quick detail, but I will refer to two others in some sort of detail. I work very closely with these groups. We do not always agree on issues but these groups represent the independent supermarkets of South Australia, the small independent retailers in South Australia, and some members in this chamber highlight often that they need to be protected in terms of their employment and the ongoing importance of the small independent retailers in the South Australian environment.

The Master Grocers of Australia represent Drakes, Romeos, Chapley's, Eudunda Foodland group and a number of other independent retailers, and their position is that they strongly oppose the amendments. They state:

1. MGA strongly opposes the amendments proposed to the Return to Work Act…as referred to in the amendments to the legislation as proposed above.

Again, referring to both the Labor bill and this particular bill, they say in part, and I will not read the whole letter:

11. However, where it is totally beyond the ability of the employer to do anything other than offer all protective measures available, it is unacceptable to expect the employer to assume responsibility simply because there is no one, or nothing else, to blame.

12. It is anticipated that the unemployment rate in Australia will reach in excess of 10% in 2020, which would have been higher without the injection of billions of dollars by State and Federal Governments to help save jobs.

13. The proposed amendments to the Act would dissuade many employers to even contemplate employing staff. It is clear that if these amendments are permitted in the Act then regardless of what the employer does he/she will be liable to compensate the employee on the basis that he or she has not provided a safe workplace…

15. Employers will simply not be prepared to take the risk of employing valuable staff if they are to be blamed for the consequences of an uncontrollable disease despite all the care, they may take to protect their employees.

16. MGA opposes the proposed amendments to the Act. As an employer organization MGA understands that there is often need to make provisions to workers compensation legislation to provide for the safety and well-being of employees. However, MGA believes that the amendments to the Return to Work Act (COVID-19) are both unnecessary and potentially damaging to the current and future economy of South Australia.

I repeat, that is the group that represents the independent retailers: Drakes, Romeos, Chapley's, Eudunda Foodland group, a group that we often hear, and I agree, are important employers in South Australia, and they are trenchantly opposed, vehemently opposed to these particular pieces of legislation.

My other very good friends who represent the independent retailers are the South Australian Independent Retailers group, and they represent, as members know, Foodland, IGA and Friendly Grocer stores. They say that they strongly oppose these pieces of legislation for the following reasons:

1) This will set a precedent that all future wide spread diseases are to be covered by the workcover system and there is a high risk employers will be held automatically responsible for all future diseases impact on staff. This is a precedent that should not be set. Employers have no control of employees outside of the workplace and employers should not automatically be held responsible for the results of their employees behaviour outside of work.

2) The Bill effectively takes away all responsibility for an individual's own behaviour and deems it the employers responsibility that a person became ill due to the virus. Employers should not be held account for employees behaviour outside of the workplace. Many fines are currently being issued for irresponsible behaviour by individuals' regarding the lack of social distancing—why should an employer be held responsible for that type of behaviour if the person became ill as a result of poor behaviour outside of work?

3) In the current environment many workers are working from home—the home may then be deemed a workplace under the act. It is difficult for employers to monitor employees behaviour at the home workplace. It is also difficult for employers to restrict who visits the home workplace—children? partners? neighbours? family? tradespeople? All of these visitors to the home work place carry a risk of introducing the virus or becoming infected. If a virus is transmitted to these people, at a home workplace then they are likely to be deemed to have been injured at a workplace and the employer liable for their illness as well and not just the employees!

4) Sadly as we have seen the virus causes death. Under the bill if the illness is automatically the employer responsibility then so will a death of person (who happens to be an employee of the industries covered by the bill) be automatically deemed a workplace death. This means employers and their directors will be held responsible for workplace deaths of people who may have caught the virus outside the workplace. How is that fair or logical? As a result, the cost to the employers and the workcover system of this bill will be immense.

Further on it states:

It is unclear how a person with more than one job will be treated if they get the virus—which workplace will be deemed to have caused the virus to be caught by the employee and hence which employer will be held responsible where there are multiple employees?

Finally, it states:

The SAIR and its members take workplace safety seriously and have a genuine interest in providing safe workplaces, but we believe this bill is an unreasonable burden on employers and should be defeated.

I quoted those three at length, the first because of the national profile of the Australian Small Business Ombudsman and the second two because those two particular groups represent South Australian small independent retailers. As I said, we have often heard them being quoted in this chamber as being important employers in the South Australian context. They are vehemently, trenchantly, opposed to this legislation as being unfair and unreasonable on them as employers, and it would be, in the words of some, an act of self-harm by this parliament to be supporting legislation of this type through the South Australian parliament.

Without going through all the others, ReturnToWorkSA have indicated their opposition to the bill. The Self Insurers of South Australia have indicated their opposition. The Australasian Convenience and Petroleum Marketers Association (which represents all the On The Runs), BP, Mobil, Viva Energy, Adelaide Fuel, and Caltex Woolworths strongly oppose the legislation. The Motor Trade Association is strongly opposed to the bill. The Australasian Association of Convenience Stores, the peak body for the convenience industry, strongly oppose it. They went as far as saying that, if this bill were to pass, they would consider advising their members to close their doors on account of the risks they face being elevated to an unsustainable level. The submission went on to describe the draft Labor bill as entirely inappropriate and grossly unethical.

The Australian Retailers Association strongly opposes the bill. The Council of Small Business Organisations Australia, the national organisation, became aware of the bill and is strongly opposed to it. The Australian Industry Group is strongly opposed to the bill. I have counted the Master Grocers Association and the South Australian Independent Retailers. The Master Builders Association does not support the bill. The Australian Lottery and Newsagents Association does not support the bill. The Pharmacy Guild of Australia does not support the bill. The Australian Hairdressing Council strongly opposes the bill. Business SA has also expressed concerns about the legislation.

As I said, the one thing these two pieces of legislation have done is they have united almost every employer group in the state, from big to small, from independent to large, to say that this is ill thought-out, ill-considered legislation that will be an act of self-harm at a time when we are trying to protect employment in South Australia.

For circumstances where an employee may have contracted the disease from a bus or from a nightclub or from a hotel or from a bar or from a mate who came around and visited them at home, or wherever it might happen to be, the automatic assumption is that it is the employer who is to blame. It is for those reasons that the government strongly opposes this proposed legislation and indeed the Labor bills.

The Hon. T.A. FRANKS (18:23): I would like to thank the members who have made a contribution today, particularly the Hon. Connie Bonaros and SA-Best, who have indicated their support for this bill. I note the words of the Labor opposition lead speaker that they will not be supporting this bill today because they prefer their version of the bill. I thank them for acknowledging the leadership. I noted in my original speech that it was something that the Greens had discussed around the various states and territories and at a federal level at about the same time as the Labor leader announced the Labor Party's intention to move in the other place on that. Certainly, it is no surprise therefore that our bills are not dissimilar.

Some key differences that I would like to point out and put on the record at the moment are the automatic and retrospective commencement date for this bill that is contained in the Greens' version that I would like the Labor Party to consider, as well as the broad range of people-facing workers.

While the Hon. Rob Lucas may have trotted out references to the fact that it is accepted that nurses, doctors and health professionals be considered and protected, the very point of this particular pandemic and this particular virus is that, while we are generally told to stay at home, workers are put in the very path of danger by the fact that they are in people-facing industries. JB Hi-Fi workers are put in incredibly cramped spaces without PPE and are unable to distance themselves socially and in an appropriate way and are crying out through RAFFWU, their union, for assistance, guidance and support with that. These are the very workers we do not often think of as essential workers, who have suddenly become the essential workers of this pandemic.

It is different from SARS and previous pandemics. Not in my lifetime have we had the police commissioner in charge of the state and able to suspend every single law of this state should we need to for the purpose of this pandemic. Not in my lifetime have we seen the streets empty and homeless people housed in what I would point out to the Treasurer are refuges not refugees. This is the thing: people are being told to stay home, yet some people are being told to go to work, and if they did not go to work then we would be far weaker in terms of our economy, let alone our society, let alone for those particular businesses that rely on the workers that we are currently putting in harm's way.

I am glad that the honourable Treasurer in his contribution has reflected on something that he tweeted—as I noted in my second reading explanation—on 7 April that in fact 'you are already covered for COVID-19 under our return to work legislation', so no employer need think that that is not the case. What this bill does is identify those workers who are and have been deemed to be essential, who we are putting in harm's way. We are risking their very lives to keep our society going.

I note that earlier on today the honourable Treasurer noted that he held some of these workers in very high regard. Well, I did not hear the voice of any of the workers represented in his reflections and consultations today. I note that we have had not one, not two, but three, I think now, emergency COVID bills, and not a skerrick of consultation has been done on those. I note that the Treasurer, in his enthusiasm, has extended shop trading hours and cited public health advice. I am yet to see any substantiation of real public health reasons why we extended our shopping trading hours at the very time that other states reduced theirs.

I note that poor behaviour outside of the workplace has been put down as a reason for these workers to not be given the presumptive treatment if they have been put in harm's way and that that is how they have contracted the disease should they do so. How outrageous—the poor behaviour of these workers who we are absolutely relying on 24/7 right now, without whom the state would have ground to a halt.

It is cited that this bill is a disincentive for employers to employ people. I think this bill is a disincentive for employers to put their workers in harm's way, to needlessly subject them to being put in danger, and that is the very point that this bill makes. The Treasurer also remarked that workers were placing themselves in this danger. Workers are going to work. They are directed by their employers, and there is a duty of care to protect our workers under this act, the relevant act, and in this state.

While the Treasurer may dismiss the 'vibe', the 'feeling', certainly I note that the 'vibe' and the 'feeling' went a long way to the restriction on the provision of alcohol to our dining tables now that we have started to serve food. I understand the South Australian state stands alone in banning the ability for someone to have a beer or a wine or a sneaky gin with their meals in coming weeks. No public health evidence has been provided for that move. That is simply the 'vibe of the thing'. As I noted, the enthusiasm of our Treasurer for 24/7 shop trading hours remains untamed, but extending our shop trading hours has also been very much a 'vibe of the thing' from the Treasurer.

Now, more than ever, the fact that we have not done it this way before is no longer a reason not to do it differently. We are doing so many things differently and this is what was cited by the Treasurer to be an uncontrollable disease. I note the very fine work of the Premier and the Minister for Health and Wellbeing, the Chief Public Health Officer and her deputy and of the State Coordinator. This work has controlled this disease. It is controlled; we can provide safe workplaces and we can stop blaming workers for their supposed poor behaviour outside of work.

We are telling everyone to stay home and stay safe, yet we are putting these people in harm's way. I am a little disappointed that the Labor Party did not have any discussions with me prior to making their contribution this evening. I would have been happy to work with them on this bill, and would have been happy to suspend standing orders to support their bill going through tonight.

As we have now changed the sitting schedule, we have many more weeks to wait—indeed, until June—before we debate this very important issue. The issue is the provision of a presumptive COVID care—not a COVID care that blames workers for putting themselves in harm's way, but one that sends a very strong message that employers should not put their workers in harm's way and provides that very high regard that I would hope the Treasurer wishes to extend to all workers in this state.

Bill read a second time.

Sitting extended beyond 18:30 on motion of Hon. R.I. Lucas.

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