Thursday, 24 November 2011
Work Health and Safety Bill 2011, Work Health and Safety (Transitional and Consequential Provisions) Bill 2011; In Committee
Bills—by leave—taken together and as a whole.
by leave—I move opposition amendments (1) to (4) on sheet 7154 together:
(1) Clause 19, page 23 (line 3), after “undertaking”, insert “who has control over the matter”.
[primary duty of care]
(2) Clause 19, page 23 (line 9), after “undertaking”, insert “who has control over the matter”.
[primary duty of care]
(3) Clause 19, page 24 (line 7), after “as”, insert “he or she has control over the premises and it”.
[primary duty of care]
(4) Clause 19, page 24 (line 8), after “practicable”, insert “to do so”.
[primary duty of care]
The primary duty of care is, from the coalition's point of view, an important issue that needs to be considered. We believe that the modern principles of occupational health and safety were first created in the United Kingdom in 1972 under the Robens review. The principles of that review hold that responsibility for safety is allocated to what is reasonable and practicable to control. That is a very important test, from the coalition's point of view. That is the control test.
That benchmark of 'reasonable and practicable to control' is in fact also embodied in the International Labour Organisation conventions to which Australia became a signatory in 2004 under the Howard government. ILO Convention 155 states in article 16 that:
Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.
We believe that that word 'control' is a very important component of any sensible legislation.
As I indicated, this had its genesis nearly 40 years ago in the United Kingdom. I understand that there was also a Victorian review after the Robens review in the United Kingdom and that the state of Victoria came to a similar conclusion. The national review into the occupational health and safety laws in its report of 1 October 2008 stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care and then recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is implemented now in the national model OHS laws. It is to be remembered that during this time—I do not want to get into it too much—we did have wall-to-wall Labor governments and it was agreed at that time by all of the Labor governments that that should be the case.
The coalition cannot understand changing the law to get a new test which is untried. The existing test originated in the United Kingdom some 40 years ago and was put into an International Labour Organisation convention only some seven years ago. The test that had been implemented about 30 years earlier and had attracted the attention of the International Labour Organisation was deemed by that organisation to be a good and proper test. Why we would seek to take out of the Australian law a provision which has been well established for some 40 years is something that I confess the coalition cannot quite understand, other than perhaps because certain pressure was brought to bear on the government—all governments at the time being Labor—courtesy of elements of the trade union leadership.
The model laws introduce a new and untested legal concept of connecting duties of care to a person conducting a business or undertaking. At a later stage the Parliamentary Secretary for School Education and Workplace Relations might be able to give us some clarity on how that applies to the volunteer sector, as well. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but also is a major shift away from known occupational health and safety principles in all Australian jurisdictions except New South Wales. Further, it removes a key element of the ILO convention to which Australia is a signatory, and creates a legal vacuum due to unknown application and interpretation of duties of care under a new concept. It is reasonable to expect that with the removal of the word 'control' legal uncertainty will occur and many years of judicial testing will be required before clarity is achieved.
One of the aims of harmonisation was to get a simpler regime—a regime that was clear; that had legal clarity. The coalition believes the wording of the act must give unambiguous signals in clear, lay language to every person involved in workplaces. People must understand in a practical sense that if they control something or even share control they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safer workplaces. I commend the amendments to the committee.
The government opposes both sets of amendments proposed by the opposition in relation to primary duty of care. Consistent with the model act, this bill broadens the duty of care provisions beyond the traditional employer-employee relationship so that all persons who conduct a business or undertaking owe a duty of care to all persons who may be put at risk by the conduct of the business or undertaking. Importantly, this includes workers whose activities in carrying out work are influenced or directed by such persons. The primary duty of care in the bill requires persons conducting a business or undertaking to ensure the health and safety of workers and other persons so far as is reasonably predictable. It is not an absolute requirement—the person conducting the business or undertaking need only do what can be reasonably done in the circumstances to comply with the duty.
The National Review into Model Occupational Health and Safety Laws recommended, and workplace relations ministers agreed and have maintained such agreement, that control should not be a separate element used to limit the extent of the primary duty of care or be expressly included in the definition of what is reasonably practicable, for two key reasons. Firstly, the inclusion of 'control' in the primary duty of care can result in the focus being on whether or not a duty applies rather than on what needs to be done to ensure the health and safety of workers. In other words, a control test might encourage arrangements to avoid control in order to avoid the duty. Secondly, the case law provides that control is relevant in determining what is reasonably practicable in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything or not reasonable to expect them to do so.
This is not to say that the concept of control is not contained in the bill. The bill includes specific duties for persons with management or control of workplaces and persons with management or control of fixtures, fittings or plant at workplaces. Further, the duties in clause 19(4), which the opposition is seeking to amend to include reference to 'control', only apply where the person conducting the business or undertaking has management, or control, of the accommodation. At best amendments (3) and (4) add nothing to the provision as drafted; at worst, they simply confuse the provision. It is on this basis that the government opposes the amendments.
Can the parliamentary secretary explain to the chamber how the re-establishment of a well-accepted test will lead to confusion? It is a test that was adopted in the United Kingdom 40 years ago and 30 years later, in 2004, it was adopted by the International Labour Organisation. Given that it was all settled, why would maintaining the settled provisions, the settled understanding, lead to confusion? It is, with great respect, the other way around—because we are having new tests imposed on us, there is this legal uncertainty. Whilst you are dealing with the issue, can I also comment that, given the very serious penalties that will be imposed by this legislation, it is a very important consideration to know whether somebody has the control, and therefore, if you like, the duty, before one starts making people liable for what will become very hefty penalties.
I will commence with the last part of the senator's question, because I covered that in my earlier comments. The duties in clause 19(4), which the opposition is seeking to amend to include a reference to control, only apply where the person conducting the business undertaking has management or control of the accommodation. I think that point is fairly clear.
There are perhaps two components to the answer on the other point that Senator Abetz makes. The first is that these provisions reflect, as I stressed, the model act. This is the act that is being introduced in states and territories. I accept his point that when they were first agreed there was a different composition of governments in those states, but the ones that are being delivered in those states are consistent with the measures being included here. On the second component: perhaps I could stress that Senator Abetz obviously takes issue with the recommendations of the national review, which, as I mentioned earlier, the government has accepted in the framing of the current bill.
I thank the parliamentary secretary for that. What is the difference and how will it be determined, if the clause refers to the person who has the management or control? Clearly, management and control are now being seen as two different things, but both can be responsible. Of course, there are potentially work sites for which somebody has the overall management responsibility but for which a subcontractor has the actual control in a particular circumstance. To say that the manager of that site bears as much responsibility as the subcontractor who is controlling the situation leads, I think, to duplication. It is potentially a hugely unfair burden to place on those who have the management responsibility as opposed to the direct control that one would imagine the subcontractor in my example would have.
Let me explain to Senator Abetz what is relatively clear to me through addressing these matters on a case-by-case basis. The bill contemplates that there may indeed be concurrent responsibilities where you may have more than one party responsible to one extent or another. The test of that would then be what was reasonable and/or practicable with respect to the level of management or control associated with the particular party.
With respect to the parliamentary secretary, that has not been explained in the detail that would satisfy me in this debate. We have a situation where somebody bears the management or control. It stands to reason that, in some circumstances, there may be people who bear responsibility for the management and others who bear the responsibility for control of a situation. In those circumstances, on whom will the duty rest or can you just cherry-pick to determine whom, on a particular occasion, you should pursue? Or should you pursue both and potentially get a double whammy? That is the difficulty that we have with this language.
I think I would need to cover ground that I mentioned earlier. The bill envisages that there would be concurrent responsibilities. It is not, in our view, an issue of cherry picking to assess what is reasonable or practicable with respect to management and/or control issues in relation to health and safety incidents.
I thank the parliamentary secretary for clearing that up, because it means that there is a concurrent responsibility. The manager of the project clearly has a responsibility and will therefore have to incur the extra expense and time to ensure that they look at everything done by the subcontractor, who would actually have the control. We will have two different parties, one in management and one with the actual control. Let us say that you are a project developer and your first task is to dig the foundations. That has to be done in a safe manner. You get in a subcontractor to dig the foundations. The person doing the overall management of the project will therefore basically have to be there supervising the subcontractor, to ensure that they avoid liability under this legislation, in case the subcontractor digging the foundations, who actually has the physical control of the site, does something wrong. In those circumstances, they would have to be there and incur an extra cost. That was never the idea of harmonised legislation. The idea of harmonised legislation was to make it simpler and to increase the productivity of our workforces and our nation. This of course will clearly reduce productivity, because we will have to have supernumeraries double-checking each other to make sure that they escape liability. So this becomes a very bureaucratic and costly exercise.
It is the government's view that requiring, as this bill does, that duty holders consult about such matters is important and does not need to be a costly process. Again, though, I stress the point that the duty relevant to duty holders is what is 'reasonably practicable' in the circumstances. But at the other extreme, in the circumstances that Senator Abetz is raising, I am sure that, in his view in dealing with these matters, he accepts that by the same token we do not want provisions that encourage management to outsource responsibilities for the health and safety of their workplaces.
That of course is going to the bizarre length which is not at all within the parameters of what I was mentioning, because it would be very hard to argue that it was unreasonable or impracticable for the duty holder—in this case, the manager—to have a person there on site, supervising at all times the work of the subcontractor. So in those circumstances that will be an extra cost and a reduction in productivity. The question then is: if the duty holders have to consult with each other, and do consult, are they able to contract out of their obligations in this legislation by asking, or by getting one party to agree, that they will take over the responsibility of both the manager and the controller of a particular site?
Senator Abetz, I stress that the consultation is about making sure that there are no gaps. But the critical issue is what is reasonable and practicable. Your suggestion that there would be massive costs because a manager might require a supervisor to supervise what is happening at a workplace where work is occurring under a subcontractor is by far to the extreme. The suggestion that the provisions in the bill that consultation needs to occur to ensure that there are not gaps in dealing with the health and safety issues in the workplace, and the suggestion that the provisions in this bill might require a supervisor for the manager to be in attendance at all times, is quite extreme.
Well then, if that is 'extreme', why do they hold the responsibility, as I understand it, jointly? As I understand it, the manager and controller have that responsibility jointly—so, unless you can tell us that that is not held jointly, your suggestion that it is an extreme example cannot be maintained.
The word I used was 'concurrently', and the meaning is quite different. What will be assessed on a case-by-case basis is whether either of the parties with duty have undertaken what is reasonable and practicable in the circumstances.
So can you just explain, for the workers of Australia, and in particular the small businesses of Australia, the difference between the word 'jointly' and the word 'concurrently'.
Without referring to a dictionary, which I do not have at hand, and without having been intimately involved in the drafting of this bill, I think the common-sense meaning is essentially that 'concurrently' picks up the concept that in some circumstances, or at some points in time in a particular project, it is reasonable to expect, given what is reasonable and practicable, that the responsibilities hold at one level, or at another level or indeed at both—it will depend on a case-by-case basis on the circumstances involved.
It was so easy to dismiss me by saying that the word 'jointly', which I used, was not the word used but that we could not be told exactly what the difference was. The Hansard will show that to be the case. But why have we removed the word 'control' in the test if it is so practicable and reasonable to know who would be in control at any one particular time? The difficulty with this is that at least that was a test that has had some 40 years of jurisprudence behind it, and people actually understand what the control test means. By removing it, you now leave it open, one imagines, to another 40 years of jurisprudence to settle the matter, which will occasion expense and uncertainty—and that, I would have thought, is not good for workers, small business or indeed premiums.
I will go back to Senator Abetz's earlier point and take him to clause 16 of the bill, which describes quite clearly the circumstances around which more than one person can have a duty. It says at point (1):
More than 1 person can concurrently—
that is the language used in the bill, not 'jointly'—
have the same duty.
Point (2) then states:
Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
It envisages that different duty holders may indeed have different duties in relation to the health and safety of workers in the circumstances.
Also, addressing the earlier point, point (3) states:
If more than 1 person has a duty for the same matter, each person—
(a) retains responsibility for the person’s duty in relation to the matter; and
(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
I think that also answers the concern, in part, raised by Senator Abetz with respect to the control issue. I would further make the point that I earlier made, which is that Senator Abetz is, in these amendments, reprosecuting a matter that has already been addressed. It has been addressed by the state ministers; it has been addressed by new state governments in accepting the terms in the model act, and his difference of opinion is with the national review panel, whose recommendations we have accepted.
It might come as a surprise to the parliamentary secretary—it does not worry me who I might be disagreeing with or not—but sometimes panels come up with bad laws and bad considerations. There is still no overwhelming rationale as to why 40 years of jurisprudence, accepted internationally, accepted by the International Labor Organisation, should be set on its head by this bill. For the review panel to somehow think that they have got it better than the international experience and the ILO is interesting. I might remind the parliamentary secretary that on matters of climate change and a few other things we are very able now to just reject the view of international bodies when they make certain determinations—but we will not go there for the purposes of this debate.
A concurrent responsibility clearly indicates that two or more people might have a responsibility in a particular circumstance. So there is duplication, and one imagines there could potentially be triplication or quadruplication of these responsibilities in circumstances, which happen from time to time, where you have, say, a project manager who then subcontracts certain work out and then that subcontractor subcontracts out to a number of other subcontractors, and you can go right down the chain. This happens on major building sites on a very regular basis. So you could have three or four different people or organisations concurrently responsible for the control of a situation. To suggest that that will not lead to uncertainty is to fly in the face, I would suggest, of common sense and personal experience that I think we must all acknowledge will be a problem for the future of this law.
That the amendments (Senator Abetz's) be agreed to.
The committee divided. [16:59]
(The Chairman—Senator Parry)
by leave—I move opposition amendments (1) to (4) on sheet 7156 together:
(1) Clause 19, page 23 (lines 3 to 8), omit subclause (1), substitute:
(1) A person conducting a business or undertaking with control over the matter at work must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person, while the workers are at work in the business or undertaking.
[primary duty of care]
(2) Clause 19, page 23 (line 9), after “undertaking”, insert “with control over the matter at work”.
[primary duty of care]
(3) Clause 19, page 23 (line 14), after “undertaking”, insert “with control over the matter at work”.
[primary duty of care]
(4) Clause 19, page 24 (line 7), after “undertaking”, insert “with control over the matter at work”.
[primary duty of care]
This harmonisation has been sold to the community as being of overall benefit, and one hopes that it will ultimately remain so, but does the government accept that there will be some winners and some losers? Is the government able to advise the Senate who it would anticipate that the losers will be as a result of the harmonisation?
Senator Abetz, there seemed to be some confusion on this issue during the second reading debate. I think Senator Edwards suggested that the regulatory impact statement had not been made available. It is indeed available, and I referred in my summing up speech to some elements of that assessment—that is, the harmonised occupational health and safety laws have been independently assessed as having the potential to deliver up to $2 billion per annum in productivity improvements in addition to a national benefit of $250 million per annum reflecting reduced red tape for business overall and better work health and safety standards for workers.
If Senator Abetz is interested, I can come to a bit more detail in terms of the regulatory impact assessment. But you may indeed need to look at it yourself to gauge the winners-and-losers aspect of your question. If you wish, I will cover some other elements of the RIS.
If I can help direct the parliamentary secretary's attention: as I understand it, the regulatory impact statement that was released, if I am correct, makes this statement:
While some of the type of harmonisation and reform-model work health and safety regulations will result in clear 'winners' and 'losers', especially for small businesses …
Was that phrase in there, and, if so, who are the losers?
No, that is fine. The RIS deals with matters on two levels. It indicates that there is a broad benefit for the national economy, for productivity across the board. It does highlight that in some cases there may be some issues, particularly for small business.
First of all dealing with the broad benefit, was the broad benefit determined on the basis that every state would have identical legislation? We know that, courtesy of the Labor-Greens alliance that operates in the New South Wales upper house, like it does in this place, New South Wales does not have harmonised laws, which will incur extra costs, one would imagine, and therefore those figures that were mentioned clearly need to be reassessed. Then, in relation to the winners and losers, which ones are the small businesses that will be the losers that the 336-page impact statement told us about?
The regulatory impact statement was done on the basis of harmonised laws across the nation, so Senator Abetz is correct to the extent that there are variations to that. That may have some limited impact on the overall assessment and, presumably, the level of variance. I stress 'may' because, depending on the level of variations, it may not. But I can indicate to him that that was the basis upon which the regulatory impact statement was conducted.
In relation to small businesses, the regulatory impact statement is not specific about any particular types of small business where impacts may be seen as greater or lesser, other than to highlight that for some small businesses there may be some issues.
This is another example of how the government treats small business. They give you the big picture, saying it will save this amount of money, that amount of savings, but then in the fine print they finally admit that, yes, some small businesses will be impacted. Then, when you ask for the detail or for the specificity of that, they try to deal with it in a broadbrush way. We in the coalition are concerned about every individual small business. We are concerned at how they might be impacted. We are concerned if small businesses will face increased costs and, undoubtedly, overall that will then run into literally millions of dollars for small businesses. It looks as though we cannot identify those small businesses. I am sure they will soon identify themselves.
In relation to the broad picture of the $2 billion savings to the economy, you are saying now that an unharmonised system—if I can use that term—will only lead to a small reduction of that $2 billion figure.
Senator Jacinta Collins interjecting—
You are not? All right, what is the figure?
Senator Jacinta Collins interjecting—
Yes, we were told $2 billion was the approximate productivity dividend to the economy through harmonisation. The government still insists on and pursues this figure of $2 billion when it is now absolutely clear to everybody that the laws will not be harmonised. New South Wales, courtesy of the ALP-Greens alliance in that state's upper house, has ensured it does not have harmonised legislation. Western Australia is expressing concern. South Australia has had fits and starts in relation to its determination. We still do not know exactly when this is proposed to start. Possibly, parliamentary secretary, you could indicate to us when you anticipate these laws to commence.
I think there are two issues that I need to address at this stage. The first is in relation to a regulatory impact statement. As I mentioned, this was an independent regulatory impact statement. It meets the conditions set out by the Office of Best Practice Regulation. Indeed, those were provisions that were established by the former Howard government that relate to the process of doing a proper impact assessment, and this has been conducted.
I indicated previously to Senator Abetz that the basis of that assessment was indeed the harmonisation as consistent with the model bill. To be clear about my earlier comments, the point that I made was how less a value might be ascribed to variances is obviously going to depend on the nature and the extent of those variances. Small changes—in New South Wales, for instance—may have next to no impact on that assessment of $2 billion. What will have a significant and large impact will be if states do not proceed down this path of harmonisation. On that point, I would encourage Senator Abetz if he wants to assist the government in ensuring we get the full $2 billion per annum in savings that he encourage his state colleagues in Victoria and Western Australia to proceed with harmonisation.
Given that you have no guarantee that that will occur, how can you stick with the figure of $2 billion? More importantly, and we must all accept this, the devil is going to be in the detail—namely, the regulations. How on earth can an honest assessment be made that the productivity dividend of harmonised laws will be $2 billion when we do not know the cost and the impact on the economy of each of those regulatory regimes that will be applied? How on earth can the government or, indeed, this office of independent assessment make these determinations when we do not know what is going to be in the regulations and what the cost is going to be?
For example, in my speech on the second reading I asked whether safety fencing will now have to be installed around every single home site. Were those sorts of matters taken into account in relation to the determination of the productivity dividend? Or do I take the tip they clearly were not because by the sound of the regulatory regime, it will simply make the cost of housing, the cost of building and all enterprises considerably more expensive.
A couple of points need to be clarified in relation to the regulatory impact assessment. There are indeed two regulatory impact assessments. One relates to the model act and the other to the model regulations. The first question was, 'Has the regulatory impact assessment taken into account the regulations?' The answer to that is yes.
Yes, the model regulations and the model act, on the basis that every state would implement basically the same bill. We now know that the same bill will not be introduced Australia-wide, and exhibit A for that is New South Wales. We still do not know what the final regulations will be in relation to this. Therefore, that figure must of course be, to use the technical term, quite rubbery, because we do not know what the final situation will be. In relation to regulatory impact statements, a minister in the other place, Mr Crean, referred to another regulatory impact statement when the legislation was over there. I assume that he was referring to the further regulatory impact statement in relation to the model regulations—or was he referring to something else?
Subject to clarification, my understanding is that when the bill was introduced in the House, the regulatory impact statement with respect to the regulations was not available, but before it was debated and passed they were subsequently made available. In all likelihood that is indeed what the minister would have been referring to.
Thank you for clarifying that. I was assuming that that would be the case. The parliamentary secretary may, in general terms, be aware of some concerns that have been expressed by the volunteer sector in relation to harmonisation. One example I had was in relation to the definition of the expression 'business or undertaking'. Can the minister advise whether that will include voluntary organisations? As I understand it, many of the volunteer associations are in fact incorporated associations. What will be the width, breadth and reach of this legislation for the volunteer sector?
Indeed, the circumstances around volunteers are possibly even a bit more complex than that. I am sure that Senator Abetz understands that many incorporated or even unincorporated volunteer organisations involve both employees and volunteers. This is why the government believes the bill strikes a balance between protecting volunteers in the workplace while also not discouraging voluntary participation in community activities.
Under the model laws, workers who are volunteers are owed the same protections as any workers. This is an important protection and it ensures that volunteers are not treated differently to employees and contractors who are engaged in the same workplace. The application of the bill to volunteer associations is not directly relevant to this debate because the Commonwealth bill before us today will only apply to the Commonwealth, Commonwealth public authorities and, for a transitional period, non-Commonwealth licensees. However, the Commonwealth Work Health and Safety Bill does form part of a national scheme of harmonised work health and safety laws that recognises that there are some voluntary associations that do not have health and safety duties. To that extent, I think it is still relevant to deal with this point. These are groups of volunteers working together for community purposes who do not employ any person to carry out work for the volunteer association. The engagement of contractors for one-off jobs—for example, to audit the accounts or drive a bus for a day trip—will not affect a volunteer association's status. However, if a volunteer association has employees, then it will owe health and safety duties to all workers, including any volunteers who engage in work for the association. The Model Work Health and Safety Regulations clarify that the law applies equally to both unincorporated and incorporated volunteer organisations. An officer who is a volunteer will have the duty to exercise due diligence but cannot be prosecuted as an individual for failing to do so. This is designed not to discourage voluntary participation as officers. Importantly, Safe Work Australia is developing, in consultation with Volunteering Australia, further guidance material for volunteer organisations, volunteer officers and volunteer workers.
I am looking at a piece of correspondence I received from Snedden, Hall and Gallop Lawyers, dated 19 August, dealing with the volunteer sector. If I may, I will read out a section of it and obtain the parliamentary secretary's response.
if we can actually make a photocopy. I thank the senator for that indulgence. We will try to get the documentation to the parliamentary secretary as soon as possible. I understand the minister was written to on 27 June 2011 as well.
Also, a letter from Safe Work Australia on 15 March 2011, signed by Mr Rex Hoy, in particular talks about clause 5 of the bill and the definition of a 'person conducting a business or undertaking'. Safe Work Australia, in Mr Hoy's correspondence, tells us:
Subclause 5(1) makes it clear persons conducting a business or undertaking are covered regardless of whether the business or undertaking is conducted for profit or gain.
In other words, the not-for-profit sector is included. The letter then says:
Further guidance and the intended scope of the term 'person conducting a business or undertaking' may be found in the explanatory memorandum. The explanatory memorandum explains that it is intended to be read broadly and covers businesses or undertakings conducted by persons including employers, principal contractors, head contractors, franchisors and the Crown. This would also cover, for example, other organisations and entities that are recognised at law, including incorporated associations.
We are then told:
The ministerial council decided the model work health and safety laws should protect volunteers in their capacity as workers, but it should not have the unintended consequences of discouraging voluntary participation in community based activities.
We are told further:
The ministerial council directed that regard must be given to the extent to which the model work health and safety laws should place duties on volunteer directors or organisations and the extent to which duties of care should be owed to persons who undertake work in a voluntary capacity.
Possibly, Parliamentary Secretary, you could just explain to us again how that direction from the ministerial council was implemented to ensure that regard be had to 'duties on volunteer directors of organisations and the extent to which duties of care should be owed to persons who undertake work in a voluntary capacity'.
I will revisit a couple of the points I made earlier: firstly, that Safe Work Australia is developing, in consultation with Volunteering Australia, further guidance material for volunteer organisations, volunteer officers and volunteer workers—and indeed some of the specificity that Senator Abetz would like to see may need to wait upon that guidance material.
Also, I should repeat that the Model Work Health and Safety Regulations clarify that the law applies equally, as he has indicated, to both unincorporated and incorporated volunteer organisations. But an officer who is a volunteer will have the duty to exercise due diligence but cannot be prosecuted as an individual for failing to do so. This is what I think the ministerial council was referring to, in that it is designed not to discourage voluntary participation as officers.
The letter from Snedden, Hall and Gallop to which I referred, on page 2—possibly the first two paragraphs—refers basically to obtaining an assurance for the volunteer sector that those people who volunteer and those who give of their time voluntarily, especially sitting on committees of these associations, will be completely protected, given that in our society—and I am sure everybody in the chamber irrespective of their political persuasion would salute the work of volunteers—it is often hard to get people to serve on committees and if they now have an added burden of responsibility then that might mitigate against people putting their hands up to be of service.
I hear what the parliamentary secretary has said thus far, and if she could confirm that those two paragraphs on page 2 of the letter which I have provided her are not matters of concern then I will be happy, as I think the volunteer sector will be.
Those two paragraphs do indeed cover some of the material we have discussed thus far. There are two key points in them, I think. The first is that directors of volunteer associations will have duties or responsibilities, but, so as not to discourage voluntary participation, they will not be able to be prosecuted as individuals for failure to discharge them. It is that inability to be prosecuted which provides the protection for voluntary officers. The other issue is in relation to exemptions, where I think there was some concern as to whether the exemptions for voluntary associations that do not have employees would cover both incorporated and unincorporated organisations. The response to that is: yes, it covers both.
As I understand it, the volunteer directors of associations will bear all the responsibilities but will not be able to be prosecuted. Have I understood that correctly?
I think officers will correct me if I am wrong. I think part of this relates to our earlier discussion about people potentially having concurrent responsibilities. The first step is that a voluntary association, because of the exemption, needs to have employees. So there may be some concurrent responsibilities between directors of a board of a voluntary association and a manager of both volunteers and workers in a voluntary association. Again, we are back to that earlier discussion about concurrent responsibilities. But the other point is that, if you are an officer who is a volunteer, you will still have the duty to exercise due diligence but you cannot be prosecuted as an individual for failing to do so.
That then begs the question: they have a duty but they cannot be prosecuted—so what penalty applies, if any, to the director if they have not fulfilled their duties?
There would be no penalty to the director. There may indeed be penalties to the organisation itself. The protection we are referring to is that a voluntary officer cannot be prosecuted as an individual.
If an organisation has given that responsibility to a particular director who then fails in that duty, is the organisation still responsible? If it has given that responsibility to somebody else, can it, in effect, sidestep its responsibility? Or is this a clear example where an organisation—or indeed a business, to take it that step further—which seeks to ensure that everything is done properly, but then delegates responsibility to a person who fails, can then still be prosecuted?
Senator Abetz, there is a separate duty which relates to the organisation and the organisation is unable to delegate that responsibility to a voluntary or a non-voluntary officer.
That is a very interesting concept because the organisation of itself cannot do anything other than through individuals. The organisation cannot go along to a work site. The organisation will have a resolution, or will have determined, that a particular person is to take on a particular responsibility. The organisation itself cannot. What we are being told is that, even if the organisation has sought to do everything within its powers—set out what the duties are chapter and verse to the individual who has been delegated the responsibility—and that person then fails in delivering on that responsibility, the organisation could still be held responsible; is that correct?
I think in part we are confusing duties here. In one sense, I should relieve the concern that, if a voluntary officer has a duty and fails to meet that duty, certainly they are protected in that they cannot be prosecuted as an individual, but simply by virtue of that failure to be able to prosecute them as an individual that does not then leave that duty with the organisation. The duties for the organisation are quite distinct from those which might lay with any individual voluntary officer.
That comes back to my question that clearly the organisation has the responsibility for the management whereas the individual may have been delegated with the responsibility of controlling the situation. So the management has done everything within its power to ensure that the individual delegated does the right thing but by virtue of being in a management position they will still be held responsible albeit they do not have the control by virtue of an individual having been delegated that responsibility.
I think one of the difficulties in discussing this situation is that in some senses it is hypothetical. The circumstances will depend on the facts of the case. It may be that there are circumstances where, despite the best endeavours of a voluntary officer, it was inappropriate that that officer should be given the tasks involved. But in the absence of any particular facts in a matter, it is very difficult to second-guess the circumstances where you might suggest that an organisation has done everything in their control and responsibly given certain roles to a voluntary officer.
And of course that makes out the point: why on earth are we throwing out 40 years of jurisprudence in relation to the test because every circumstance with this legislation is going to be hypothetical until such time as we get case studies and case law on the interpretation of this new regime locked in. I think I have made the point as much as I can in relation to that and the government clearly has a model bill from which it will not depart, irrespective of the strength of the logic of the arguments I put to them.
by leave—I move:
(1) Clause 155, page 111 (line 28), omit “sections 172 and”, substitute “section”.
(2) Clause 155, page 112 (lines 8 and 9), omit subclause (7).
(3) Clause 171, page 123 (line 26), omit “sections 172 and”, substitute “section”.
(5) Clause 173, page 124 (line 21), omit paragraph (1)(c).
(6) Clause 173, page 124 (lines 26 and 27), omit “, unless he or she was first given the warning in subsection (1)(c)”.
It is quite clear in this legislation that a prosecution under the occupational health and safety laws are criminal matters. Under normal criminal law, everyone has the right to silence and protection from self-incrimination—that is, you cannot be forced to say something to an investigator, let us say the police in normal life, unless the investigator first obtains a court order. This protection is a right we all have and is essential to community confidence in our criminal justice system and in the rule of law. It stops abuse of power. Protection against self-incrimination is currently available under the occupational health and safety laws, or was in New South Wales, Queensland, South Australia and Victoria. These model laws take away that right of silence and protection from self-incrimination. This will apply not only to employers but to all managers and workers in workplaces. It will give powers to occupational health and safety inspectors which are not in fact available to the police. I would be interested in the public policy arguments as to why a breach of an occupational health and safety law might be of greater moment than, let us say, a murder in which the murderer is given the right to silence but that right is not given under this bill.
Senator Abetz is correct. The right to silence and the privilege against self-incrimination are important individual rights. However, these individual rights are not absolute and they must be balanced against the public interest. In the field of regulation, particularly in the regulation of workplace safety, which is a matter of major public importance, one crucial public interest is securing effective compliance and all prosecutions. It is well established that the abrogation of individual rights may be justified if the information to be compelled concerns an issue of major public importance that has a significant impact on the community in general or on a section of the community. Safety in the workplace is such an issue of major public importance.
Abrogation of the right to silence and the privilege against self-incrimination may also be justified where there is an immediate need for information to avoid risks such as danger to human life, serious personal injury or damage to human health, or where there is a compelling argument that the information is necessary to prevent further harm from occurring.
The Work Health and Safety Bill seeks to ensure that the strongest powers to compel the provision of information are available for securing ongoing work health and safety. This means abrogating the right to silence and the privilege against self-incrimination. However, the bill balances the loss of a person's right to silence by limiting both the direct and indirect use of forced disclosure against the person required to provide the information. This means that an individual will be compelled to provide information when asked but that that information and any subsequent obtained as a result of the forced disclosure cannot be used to prosecute the individual. The advantage of section 172 is that all information is available to an inspector following a safety incident, thereby enabling an inspector and a PCBU to take timely safety and remedial action.
So we can force somebody to give evidence which might incriminate them to stop a further injury taking place, but if we suspect a serial murderer is on the run, despite the fact that we think he or she may commit another murder, we cannot have the same powers applied to them. Can the parliamentary secretary confirm that that is the case and then explain what the public policy arguments are?
I think I can simply reiterate my last two points. The bill balances the loss of a person's right to silence by limiting both the direct and the indirect use of forced disclosure against the person required to provide the information. This means that an individual will be compelled to provide information when asked but that that information and any information obtained as a result of forced disclosure cannot be used to prosecute the individual. The public interest argument is to avoid further safety incidents.
I am not sure I fully got an answer to that, but can the parliamentary secretary now explain how this regime is different to the regime under the Australian Building and Construction Commission?
The point that I can make on this issue to Senator Abetz is the regime that has been referred to here is indeed similar to that in the ABCC bill that is currently before the parliament.
I will take advice. I may need to take some elements of this question on notice. I can cover it broadly, but we do not have the relevant officers for the ABCC bill presently with us. In rough terms, my understanding is that the protections that I have mentioned in this regime regarding the inability to prosecute the individual with respect to the information provided are different to those that are in the ABCC bill.
If somebody has told you they are different they must have some knowledge as to why they believe them to be different and how they are different. With great respect, to just be told that they are different must hopefully be based on something.
I am happy to take this issue on notice and for officers to confirm their impression, but I would not want to mislead the chamber that the nature of the answer I have given you is absolute.
I appreciate that response from the parliamentary secretary, but what we will be witnessing later on this evening is the Labor-Green alliance voting down this amendment to protect people from the right to silence and from self-incrimination because Labor and the Greens believe it is so important in the occupational health and safety regime. But exactly the same people—trade union leaders and bosses and so-called human rights lawyers—who have advocated for these to become criminal laws and to have the normal criminal law diluted to remove the protection from self-incrimination have frothed at the mouth and carried on about a virtually identical regime in the Australian Building and Construction Commission. They have condemned the coercive powers, saying what an outrage it is, how it is a denial of fundamental human rights and how we in a free, democratic society should not be subjected to the types of laws that were designed to stamp out thuggery, physical violence, standover tactics et cetera in workplaces all around the country. These recommendations, I might add, came not out of a ministerial council dominated by all Labor governments but out of a royal commission. It will be interesting to see how strongly this principle is upheld by the smorgasbord of ex trade union bosses that sit on the other side. If I recall correctly, the statistics are that out of the 31 Labor senators in this place 28 of them are former trade union bosses or officers. When dealing with the issue of principle and the application of criminal law, if it relates to trade union bosses it is an outrage against human rights and you will get people frothing at the mouth and opinion pieces in the paper that are morally outraged. Yet, when it is in legislation such as this, all of a sudden they take a completely different approach. It would be interesting to see if the parliamentary secretary has, in the meantime, found out what the government's position is in relation to what is a very similar regime in two pieces of legislation.
As I indicated, the differences are something that the government has taken on notice, although my understanding at this stage, as I said, is different to Senator Abetz's in his assertion that they are similar regimes. Indeed, my understanding of this regime is that the provisions around protecting an individual from prosecution are different to those in the ABCC bill.
by leave, I move opposition amendments (1) and (2) on sheet 7158 together:
(1) Heading to clause 172, page 123 (line 30), omit the heading, substitute:
172 Protection against self-incrimination
[protection against self-incrimination]
(2) Clause 172, page 123 (line 31) to page 124 (line 3), omit subclause (1), substitute:
(1) A natural person may refuse or fail to give information or to do any other thing that the person is required to do by or under this Act or the regulations if giving the information or doing the other thing would tend to incriminate the person.
[protection against self-incrimination]
They follow on from the discussion we have had.
The TEMPORARY CHAIRMAN: The question now is that clause 172 stand as printed.
Question agreed to.
[removal of power to seize dangerous workplaces and things]
First of all, I ask the parliamentary secretary why the power in clause 176 exists. Why does it exist? What are the reasons for it and its intent?
This item proposed by Senator Abetz would remove clause 176, which allows an inspector to seize a workplace or part of a workplace or a plant, substance or structure at a workplace that the inspector has entered in accordance with part 9 if the inspector reasonably believes that the workplace or thing—that is the first time I have used 'thing' in a contribution!—is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident.
An inspector's power to seize part of a workplace will only arise in the most dangerous situations where an item is defective or hazardous to a degree where it is likely to cause serious injury or illness or a dangerous incident. If those circumstances cease to exist then it may be reasonably expected that the item would be returned immediately. Without this power, worker safety is potentially put at risk. Inspectors are subject to the regulator's direction and oversight and also other checks and balances in the provisions, including the requirement for written notice to be given of the decision and the requirement to provide a receipt for seized items. Higher courts such as the Supreme Court also have inherent judicial oversight of the decision making and actions of inspectors as public officials. Procedures are included in the bill for return of seized items in clause 180 and access to seized items in clause 181.
On the face of it, this seems quite excessive, so can the parliamentary secretary explain why an authority would not just be able to cause the work that is unsafe to cease. Why do we need the power to seize and, one therefore anticipates, also remove these alleged offending items rather than simply closing down the workplace from further work? As I understand it, that is the current law and this takes it a step further.
I will ask my officers if they can give me an example of an item that might be particularly relevant to these types of circumstances. I can imagine some circumstances where the item of risk might be something in the nature of a substance where its removal would make a significant difference to the risks involved in a workplace as opposed to simply ceasing work. While we are thinking of a particular example that might highlight the issue, I do have some further background. The Review of National Occupational Health and Safety Laws specifically considered the need for seizure powers and recommended that inspectors be given the power to seize dangerous things at a workplace. The review also recommended that broad powers be given to inspectors in a way that consolidates the powers in current occupational health and safety legislation in various jurisdictions. Clause 176 is modelled on the equivalent Queensland provision in section 110 of the Workplace Health and Safety Act 1995. Section 44 of the Commonwealth's Occupational Health and Safety Act 1991 provides inspectors with the power to seize any plant, substance or thing at a workplace if it is reasonably necessary to do so for the purposes of an investigation.
Concerns about the seizure powers in the Workplace Health and Safety Act were previously raised by Independent Contractors Australia. Specifically, ICA considered the powers to be expansive and not subject to court oversight. A number of important safeguards were included in the act. The powers are subject to the regulator's oversight and also other checks and balances in the provisions including requirements for written notice to be given of the decision and providing a receipt for seized items. There is a defence of reasonable excuse for failure or refusal to comply and procedures are included in the model act for return of seized things, in clause 180, and access to seized things, in clause 181.
It is also not the case that there is no possibility for court oversight as higher courts such as the Supreme Court generally have inherent judicial oversight over administrative decision making. I refer to the High Court's comments in Kirk v WorkCover NSW & Ors
And what a great High Court decision that was in the Kirk case. I refer everybody to Justice Heydon's decision. Is the written notice required to be given before or after the seizure?
I can refer Senator Abetz to clause 177(4):
(a) must be made by written notice; or
(b) if for any reason it is not practicable to give the notice, may be made orally or confirmed by written notice as soon as practicable.
Then subsequent provisions in 178 say that such notice is to be followed by provision of a receipt.
Except for provision 177(4)(b), which indicates:
if for any reason it is not practicable to give notice—
presumably the absence of notice is provided for—
may be made orally and confirmed by written notice as soon as practicable.
Clause 176 states:
This section applies if an inspector who enters a workplace under this Part reasonably believes that:
… … …
(c) a substance at the workplace or part of the workplace;
… … …
is ... hazardous to a degree likely to cause ... injury or illness ...
Would that include the removal of drugs and other similar substances?
The first point is that, in practice, if workplace inspectors found drugs they would call in the police to deal with the matter. But, on your reading of the provision, I think we need to indicate that we are talking about circumstances such as defective equipment or hazardous material to a degree likely to cause serious injury. In the case you gave of a substance, if the presence of that substance was hazardous and likely to cause serious injury then the provision would apply.
All very interesting. We will be doing the drug forces out of a job, no doubt. I will await with interest whether that actually ever occurs. But an inspector, under this provision, will be part of the regulator, if that is the correct term—
it is the correct term—and the people who run the show, if I can use that technical term. Can we be advised of the type of people it is intended to appoint? With Fair Work Australia, for example, we were promised by the former Prime Minister, Mr Rudd, that we would not be subjected to an endless tribe of 'trade union officials'. Of course, that is exactly what we have got with Fair Work Australia. What is going to be the procedure in relation to the appointment of the regulator and of the important personnel who will run this outfit?
Employees of Comcare will be the inspectors. On the role of the inspectors, I think a better comparison would probably be with the officers of the Fair Work Ombudsman rather than members of Fair Work Australia, which I think might have been your point.
I note that the parliamentary secretary very wisely did not seek to engage on the point I made about the appointments to Fair Work Australia. Seeing that she desisted from that I will not prolong by pointing out that which has occurred with Fair Work Australia. I appreciate the answer she has just provided.
by leave—I move opposition amendments (1) and (2) on sheet 7160 together:
(1) Heading to clause 275, page 189 (line 1), omit the heading, substitute:
275 Effect of compliance with regulations or compliance codes
[deemed compliance with Act and regulations]
(2) Clause 275, page 189 (lines 2 to 12), omit subclauses (1) to (3), substitute:
(a) the regulations or a compliance code make provision for or with respect to a duty or obligation imposed by this Act or the regulations; and
(b) a person complies with the regulations or compliance code to the extent that it makes that provision;
then, for the purposes of this Act and the regulations, the person is taken to have complied with this Act or the regulations, as the case may be, in relation to that duty or obligation.
[deemed compliance with Act and regulations]
Currently, as I understand it, we have codes of practice, which are given high importance. What this amendment seeks to do is accept compliance with a code of practice as evidence of compliance with required safety standards. As I understand it, there are a number of codes of practice in existence and it would seem fair, especially fair, if I might say, to small businesses, if compliance with a code of practice were deemed to be compliance with a required safety standard. What could occur, as I understand it, under this legislation is that in proceedings a code of practice could be admissible as evidence of whether or not a duty or obligation had been complied with and that a court could have regard to the code as evidence of what is known about a hazard or a risk. It seems to the coalition that it would be helpful if a person could be taken to have complied with this act or the regulations in relation to that duty or obligation so that there was no grey area in relation to compliance with these codes of practice.
The national review panel considered the role of codes of practice and recommended that compliance with a code should not be deemed to constitute compliance with the act or regulations, and this view was endorsed by the Workplace Relations Ministers Council. The review panel explicitly considered deemed to comply codes and rejected their adoption, noting that deeming can only be useful to the extent to which the code is relevant to the duty and there may be a breach of duty for matters falling outside the code. Currently, only two out of nine jurisdictions—Queensland and Victoria—have deemed to comply codes. The Work Health and Safety Bill recognises the important role of codes of practice and achieves the right balance between formalising this role while also avoiding overprescription and discouraging a 'tick and flick' approach to safety in the workplace.
While codes of practice play an important role in explaining the requirements of the act and regulations and in setting out practical ways to meet the required standard of occupational health and safety practice at work, the focus of duty holders should always be on achieving the best possible standard of safety in the workplace. Achieving this may involve adopting measures that are not specified in the regulation or code of practice. Under the Work Health and Safety Act, an approved code of practice will be admissible in proceedings as evidence of whether or not a duty or obligation under the act has been complied with. For example, a court may use a code of practice as evidence of what is known about a hazard and risk control. A code may also be used to determine what is reasonably practicable in the circumstances to which the code relates.
We understand what occurred and what the current bill suggests, but it does seem to the coalition that a person that complies with a regulation or compliance code, to the extent that it makes a provision, should be taken to have complied with this act or the regulations in relation to that duty or obligation. It seems to the coalition that that is a fair and reasonable thing, especially for somebody who might be starting up in a particular business or in a particular area and wants to search out the appropriate regulations or compliance codes. If they abide by that, then they should be seen as fully satisfying the legislation. It is not necessarily just a 'tick and flick'. Once a business is in a particular area of endeavour for a longer time and it gets material sent to it as to best practice, that might then inform it of other things. I believe and the coalition believes that especially start-up businesses should be afforded the protection that we would seek to provide. That is the debate in relation to the amendment. Can I ask the parliamentary secretary: is it correct that Queensland have advised of concerns in relation to the mining code of practice.
I understand that there are a number of mining codes of practice that are out for consultation and that that consultation period has just closed. There is nothing at hand on that issue, but we will see what we can do.
Parliamentary Secretary, you may have indicated to the chamber before as to when the regime is to commence. Could you just remind us of that date? Is it 1 January 2012?
What about other endeavours apart from mining? Do we have a calendar or a flowchart as to when different codes of practices will start, and when do we anticipate that the mining code will come into being?
Some of the difficulty with this answer is that it depends in part on jurisdictions. There are a number of codes that are due to commence on 1 January 2012. There are others, such as the mining codes, that it is envisaged will commence around mid that year. Further to that, there are also other codes that are in various stages of development. The complication with the mining codes is that the way some jurisdictions deal with mining differs between jurisdictions as well.
The legislation somehow is supposed to start on 1 January 2012, but as we indicated earlier—when I say 'we' I mean both sides of the chamber are agreed; I was not using the royal 'we'—both sides are agreed that this is basically coathanger legislation and it is the regulations that will actually be the important aspect. Looking at the Safe Work website, we are told that issues papers are released and then there are closing dates for submissions. If you go through that, you see, for example, that safe design of building and structures has a closing date of Friday, 16 December 2011. I am not sure how many builders are still going to be around on building sites on 16 December 2011. Possibly on that issue, can we be told when that will start applying? Can we also be told how many codes are still outstanding at this stage? How many codes are there altogether, how many codes are already in place, ready to roll as at 1 January 2012? How many are outstanding and how much notice will the different—what is the word I am looking for?
Sectors—thank you very much, Parliamentary Secretary. How much notice will the various sectors be given of the new practices and codes which they will be expected to comply with?
Senator Abetz, I would like to provide you with as comprehensive an answer to this as is possible, but I am conscious that I suspect some of the information will not be immediately available. So I am happy to take on notice what I cannot cover. Safe Work Australia came up with a list of priority codes—I think there were about 12—and all of those are due to commence on 1 January. In terms of how many others are under development, I am not sure that a total number will be immediately available.
Here it is. Beyond the first 12 priority codes, I understand that there are six further codes that are due to commence on 1 January as well, and there are roughly half a dozen further that are under development for introduction later in that year. How many more beyond that are envisaged for development I think is an ongoing process with Safe Work Australia. But I can also indicate that Safe Work Australia has been dealing with transitional arrangements in terms of movements within some jurisdictions from an existing code to what may be a new national code for the sector. Also, they will be issuing a notice about the issues you have raised about how much notice different sectors may have of any new practices or requirements as they develop them.
Can we be given a list of those 12 priority codes? If I am reading the Safe Work website correctly, first aid in the workplace to me would have been potentially a priority area, given that this is a bill and a regime designed to enhance safety in the workplace, but I look at the code and the release date was 26 September and the closing date for submissions was 18 November 2011. So can you give us an indication of whether first aid in the workplace is one of the priority codes? Also, when will it be finalised and released to the public, and from which date will it apply?
With respect to that particular code, we will need to check on the time frame that it sits within. If it pleases the Senate, it may well be better to take the full circumstances of all of the codes and give you, as you said, that template so that you can get a comprehensive picture in relation to all of the codes.
Without wanting to make people work overtime and over their dinner break—and you know that when you say something like that that is exactly what you are asking them to do, and I apologise for this, but if I am reading the clock correctly we are only about a minute away from the dinner suspension—I would appreciate it if that material could be found. There is also the other question that the parliamentary secretary has kindly taken on notice. If those other questions could be answered so that we can resume the debate after the dinner suspension at 7.30, that would be most helpful. I understand, for example, that the building industry code is one of the priority codes and that it will only be coming out after mid-December and it will be applying as of 1 January 2012. Whether all those—I will not say facts—assertions being made by me at this stage are in fact correct—
With respect to codes of practice, this is the level of information that officers have been able to ascertain over the dinner break. The staggered approach to the development of codes, including the identification of priority codes to commence from 1 January 2012, was agreed by Safe Work Australia members comprising representatives of each state and territory, the Commonwealth, the ACTU, the AiG and the Australian Chamber of Commerce and Industry. The staggered approach to public comment was at the request of stakeholders so that they could engage and provide considered comment.
Eleven priority codes of practice have been agreed by ministers from seven out of nine jurisdictions and are due to commence from 1 January 2012. These are: hazardous manual tasks; how to prevent falls at workplaces; labelling of workplace hazardous chemicals; preparation of safety data sheets for hazardous chemicals; confined spaces; managing noise and preventing hearing loss at work; managing the work environment and facilities; work health and safety consultation, cooperation and coordination; how to manage work health and safety risks; how to safely move asbestos; and how to manage and control asbestos in the workplace.
Public consultation on a further six codes of practice closed on 18 November. These are due to be finalised by the end of this year. They are: first aid in the workplace—the one you mentioned, Senator Abetz; managing risks in construction work; preventing falls in housing construction; managing electrical risks at the workplace; managing risks of hazardous chemicals; and managing risks of plant in the workplace.
Public consultation on nine codes of practice will close on 16 December. They will be reviewed following this consultation and are due to be finalised in the first half of next year. They are: safe design of building and structures; excavation work; demolition work; spray painting and powder coating; abrasive blasting; welding and allied processes; safe access in tree trimming and arboriculture—something I am sure Senator Faulkner would appreciate; preventing and managing fatigue in the workplace; and preventing and responding to workplace bullying.
It is proposed that further model codes of practice are developed to support the implementation of the Model Work Health and Safety Act and Regulations 2012, and at this stage these codes include: traffic management; diving; forest operation; precast, tilt-up and concrete elements; formwork and falsework; plant design, manufacture, import and supply; guarding plant; amusement devices; scaffolds; cranes; industrial lift trucks; rural plant; cash in transit; managing risks in policing; vibration; and biological hazards.
Aside from codes, guidance material is being developed on worker representation; personal protective equipment; heritage plant; exposure standards; health monitoring; foundry work; electroplating; major hazard facilities; nanotechnology; and synthetic mineral fibres.
These lists of codes and guidance material are indicative only. Safe Work Australia will continue to identify areas where guidance is needed under the model work health and safety legislation and to develop relevant model codes of practice and guidance material. To avoid a gap, the transitional arrangements for the Commonwealth Work Health and Safety Bill will preserve those parts of the current codes of practice covering topics still under development. This is consistent with transitional principles for the model act agreed by Safe Work Australia members.
Safe Work Australia members have also agreed to a policy of transitioning to new requirements in approved codes of practice on 1 January 2012. This policy provides that, to help duty holders to transition to any new safety practices, processes and control measures recommended in approved codes of practice, inspectors will use the guidance provided in the codes to assist duty holders to achieve compliance. Where new approved codes of practice are in place, regulators understand that a period of adjustment is required for duty holders to gain an understanding of the detail in a code of practice and how it applies to activities at their workplaces.
In relation to the body that looks at the codes of practice, we have been told that there is a Commonwealth representative, state and territory representatives and, then, the ACTU, the AiG and the ACCI. Are those organisations equally represented, one each from those organisations? Also, why is it that we did not have, say, the Council of Small Business of Australia represented or Independent Contractors Australia or some organisation that specifically does seek to champion the cause of small business?
We have had debates about the composition of work safety institutions for quite some time but I must admit my understanding currently is in neglect. If you wait one moment I will get the full details for you.
The relevant act provides for two representatives who would be regarded by the minister to represent employer interests. At this point in time they happen to be the Australian Industry Group and the Australian Chamber of Commerce and Industry. I suspect the Australian Chamber of Commerce and Industry would certainly purport to represent the interests of small business. Similarly, for employee organisations at this point in time the two representatives are from the ACTU.
I thank the parliamentary secretary for that. I did caveat my remarks by saying an organisation that 'specifically' champions small business, being cognisant of the fact that ACCI does in fact see itself partially in that role.
Please correct me if I got some of the figures wrong, if not all them, but I understand that 11 codes of practice have now been agreed by seven out of nine jurisdictions. Could the parliamentary secretary indicate to us the two jurisdictions that have not agreed to those 11 codes?
They are quite significant jurisdictions. Has any time indication been provided to the government as to when they might, if at all, sign up to those codes? And what are the issues in relation to the codes that have held Victoria and Western Australia back?
I understand the outstanding issues are that both jurisdictions are looking at further regulatory impact assessments. They have sought a delay of 12 months. At this stage the government is urging both jurisdictions to come to the party.
Once again this highlights the rubbery nature of the figures that have been submitted to us about what the harmonisation will actually do, because it is all premised on increased productivity and costs being saved by a genuinely harmonised regime. But here we have the two very significant jurisdictions of Western Australia and Victoria not giving an indication at this stage as to when they might sign up in relation to the 11 codes that have been agreed by seven jurisdictions.
In relation to those 11 codes that have been agreed by the seven jurisdictions, can we be advised as to what dates those codes were finally made available to the community? I do not need all the specific dates, necessarily, unless you have them, but I ask how much time have the various sectors been given to make the changes, because, as I understand it, there is one within the building and construction sector that is only going to be released some time later next month. Could this be confirmed: past the half-way mark in December yet it is to apply as of 1 January?
The first 11 codes were available for public comment between December last year and April this year, and the revised versions have been available publicly since 9 November. The further six codes were available for public consultation which closed on 18 November. I think one there, about preventing falls in housing construction, may be the one you are thinking of, Senator Abetz. And, yes, it is still envisaged that they would apply from 1 January.
Senator Abetz, it is envisaged that this one will be available in December, subject to approval by the ministers. They are not meeting; it will be between ministers in writing. A specific date is yet pending that process.
A number of these codes now are being imposed and businesses required to comply with less than two months notice in the case of those that were publicly available as of 9 November. I confess that, when I come into this chamber, most of the time I am of the view that big business is generally big and ugly enough to look after itself, but my concern here is: how on earth are small businesses going to be able to adjust and make any investments, changes or whatever within a period of two months? If that is not bad enough—
Just a point of clarification here: I should take the senator back to the transition arrangements which I mentioned earlier. Perhaps, after the very long list of various codes, guidance notes and the like, they were lost within that. Safe Work Australia members have agreed to a policy for transitioning to the new requirements in approved codes on 1 January. This policy provides that, to help duty holders transition to any new safety practices, processes and control measures recommended in approved codes of practice, inspectors will use the guidance provided in the codes to assist duty holders to achieve compliance. Where new approved codes of practice are in place, regulators understand that a period of adjustment is required for duty holders to gain an understanding of the detail of the code of practice and how it applies to activities at their workplace. Perhaps it might be more useful for Senator Abetz if I table the full version of the policy for transitioning to the new requirements in approved codes of practice for 1 January 2012.
The tabling of that document would of course be most helpful, but it does not overcome the issue that it is basically at the discretion of the regulator to determine whether or not in a particular circumstance they believe that the business concerned should be complying with a particular provision of a code. That is where the concern is from the coalition perspective: in relation to the uncertainty with this regime. They will now have to rely somehow on the good grace and offices of the regulator to ensure that they are not prosecuted, keeping in mind that the prosecution under this legislation will be for a criminal offence, so we are talking about serious matters here. It is all very nice to say that there is a transitional period, but it is only about giving advice on compliance and seeking voluntary compliance. If a case is brought in any event, what impact may that have, if any, in relation to the court's determination?
It will be interesting to know what arrangements have been made by Safe Work Australia in relation to these new codes of practice to educate all the businesses that might be impacted. One wonders whether or not they have been provided with the code of practice and told that this is what is going to apply, and how widely distributed this document, the policy for transitioning to new requirements in approved codes of practice on 1 January 2012, has been to all the small businesses that might be impacted. If we could be advised of the distribution of this policy document, that would be most helpful.
The education programs around these measures have principally been conducted by the various different jurisdictions. This policy about transition is relatively recent, but I think the Commonwealth can certainly recommend that this be a component of the education programs if it is not already. I understand that it is available on the Safe Work Australia website as well, but I appreciate your concern that that is not necessarily adequate.
I thank the parliamentary secretary for her approach in relation to that matter because with things of this nature when I talk to small businesses in relation to the new modern award system, I find that with compliance and the transitional arrangements, overwhelmingly, small businesses try to do the right thing. Unfortunately, every now and then they do get confused. They are not sure of exactly where to look for information or how to gain information. Unfortunately, ignorance is no excuse and so many a good and decent small business person finds themself in difficulty. I would hate to see that occur yet again with this particular regime. If the government is picking up on that, or going to make that suggestion if it is not occurring, I thank the parliamentary secretary and the government. Can I be reminded as to the confined spaces code and the first aid code? As I understand it, they were not in the priority list.
Given the pink batts experience, one assumes that the confined spaces code of practice was deemed as a priority and one assumes that would also impact on a roof cavity. That the government has finally learned something out of the pink batt debacle is to be welcomed, but I would have thought that with the first aid code—if we are talking here about occupational health and safety and safety of workers—why on earth would first aid of itself not be a priority code of practice? Please do not tell me that that is what the minister or ministerial council decided. I would like to know what was the basis of determining that something was a priority area and other areas were not.
I must admit, Senator Abetz, I am pleased to understand that the answer is pretty much as I would have guessed. The first 11 were established in areas where there were regarded to be significant risks or the level of information presently available in those areas was seen as void, whereas the subsequent six were recognised to be areas where there was a reasonable level of information already available and already in place that could apply until such time as the further work brought up a model standard.
Thank you for that. That does make sense. I return to the policy document that the parliamentary secretary has kindly tabled. We are told, at about halfway down the first page, 'regulators have discretion to determine the most appropriate tool in any given circumstance' and then we are told, 'giving advice right through to court-based enforcement'. This discretion that regulators have is not only for the transitional period but also is a discretion that they will have at all times. Therefore, it is not a special discretion for the transition period. Has a transition period been determined? If we are going to talk about transitioning, what is the transition period?
The short answer, Senator Abetz, is where there is a new or significantly different duty, it is essentially agreed that that transition period will be 12 months. There is general agreement around the transition period for the regulations but each jurisdiction is, in some areas, moving on different starting points so the nature of the transitions will be different depending on the circumstances.
I thank the parliamentary secretary for her answer but, once again, how is a small business in particular going to determine whether something is a new or significantly different practice that is required, especially if it is a new code of practice? Where in this document—and I may well have missed it so I will not allege anything—even if a small business were to happen upon the Safe Work website are they told that this transition period will go for 12 months? I cannot see it in the document.
They are not told that in the document because whether the 12 months applies or not is going to depend on whether there are new or significantly different duties relevant to any particular workplace. The more critical point though is the one I have referred to at the commencement—I cannot at the moment point you to exactly where in the paper I told you it was—and perhaps a more common language description of that might assist small business. It is the provision in the last two paragraphs that says: 'To help duty holders'—again, language that is not necessarily helpful for a small business—'to transition to any new safety practices, processes and control measures recommended in approved codes of practice, inspectors will use guidance provided in the codes to assist duty holder to achieve compliance.' The point is that if there are significant differences in the codes or in the duties that are required, it is incumbent upon the inspectors to use the guidance provided in the codes to help small businesses to achieve compliance rather than to prosecute those small businesses.
So do the codes of practice set out in red ink, to use the old-fashioned terminology, those sections that are new or significantly different? How is that highlighted to the punter that is reading through the code of practice?
That will of course differ on a jurisdiction-by-jurisdiction basis. As I indicated, the jurisdictions are responsible for their education programs. I suspect it varies across jurisdictions as to the extent to which they have engaged organisations such as small business organisations and others in producing material which would have that effect.
So that provides absolutely no certainty for a small business and anything that is so-called model in these so-called model rules and model codes of practice, because how they vary in each jurisdiction will not be highlighted in that code because it is a national code. So the punter who goes to Safe Work Australia's website will only see the code and not be informed, as I understand it, as of necessity or at all, how that might be different to the existing regime or standards, let us say, in the state of Victoria as opposed to the state of Tasmania.
That may also be a quite helpful suggestion. I know from our experience with model workplace relations requirements and the work we have done with industry parties there that the development of information around what differs has been important as people have moved to modern awards and has been quite useful to the parties in that sense, in that their own organisations have had assistance to develop material. I think that is quite a helpful point that should be made back to the jurisdictions in terms of how they put out their information programs and indeed that the website for Safe Work Australia adopt links to such material.
I am here to help, so it is nice to know that every now and then the opposition can make the odd suggestion that is taken up. The assurances that the parliamentary secretary gives are the sorts of assurances that one would expect the government to give in matters such as this, but they were identical, or similar, in relation to the Fair Work Act and the way the Fair Work Ombudsman would undertake his activities. In recent times we have had the Federal Court decision of the Fair Work Ombudsman v Ballina Island Resort, if I recall correctly, where the federal magistrate was highly critical of the high-handed approach taken by the Fair Work Ombudsman in relation to the matter for not having actually sought to educate and overcome some of the issues; they were in fact just technical issues. I will not seek to delay the committee much longer in relation to this matter, but once again confirm the coalition's very, very strong concerns about how this will impact, especially in relation to small businesses.
by leave—I move opposition amendments (1) and (2) on sheet 7157 together:
(1) Schedule 2, item 10, page 14 (line 29), omit “12 months”, insert “3 years”.
(2) Schedule 2, item 10, page 14 (after line 31), at the end of the item, add:
(3) For the period of 3 years after the commencement day, the following courses of training will be taken to be covered by paragraphs 72(1)(a) to (c) of the WHS Act:
(a) courses that were accredited under the 2006/2007 Safety, Rehabilitation and Compensation Commission's Guidelines for the Accreditation of Occupational Health and Safety training courses for Health and Safety Representatives;
(b) courses that were accredited under the 2010 Safety, Rehabilitation and Compensation Commission's Guidelines—Health and Safety Representatives training in the Commonwealth jurisdiction, or under any later guidelines issued by the Commission for accreditation of occupational health and safety training courses for health and safety representatives (as amended from time to time).
(4) Subitem (3) applies only in relation to courses covered by paragraphs (a) and (b) of that item whose content is updated to reflect legislation in force at the time.
We are dealing with the Work Health and Safety (Transitional and Consequential Provisions) Bill 2011. Training in occupational health and safety is always an important issue and at this time of transition to new arrangements the availability of courses is vital. Unfortunately, the availability of accredited courses has been reduced by this bill by some 26 per cent since restrictive changes were introduced. In order to facilitate transition and ensure the availability of training courses, the coalition is putting forward these amendments to enable the continuance of courses accredited in 2006-07. The changes made by the government support union training at the expense of a private provider, with no beneficial outcomes whatsoever.
Can I repeat that which I pursued at Senate estimates. There is a particular provider that I have in mind that has delivered work health and safety training to a very high standard to Commonwealth departments and agencies that have written back to this provider complimenting him on his high standards of training and saying that the outcomes were exceptionally good. Yet he will no longer be allowed to provide that training methodology.
You have to ask the question: why? Is this all about process or is it about outcomes? Surely in developing courses and training the one issue ought be: what is the outcome? Will the workers, after their training, be able to deliver the work health and safety, and understand the issues in their workplace? Commonwealth agencies and departments have said: 'Yes, the particular training provided by this trainer has been exceptionally good. The people who have been trained have complimented the scheme.' Yet now it can no longer be taught because the teaching methodology is deemed to be inappropriate; it does not fit the one-size-fits-all approach.
Another thing that I am absolutely gobsmacked by is the fact that internet training will not be allowed either. In this day of the NBN and all the rest that Senator Conroy bangs on about day after day in this Senate, training has to be face to face. That is one of the real issues: if you can get your training for a university degree and other things over the internet, why on earth can't you get work health safety training also over the internet? Can I indicate that the trainer of which I was speaking before is not necessarily in that space, but I can imagine innovative trainers might be developing packages going down that track. This ham-fisted, one-size-fits-all approach is designed basically to support one particular group of providers. It seems to me that there has to be a detailed explanation provided to this committee. I have pursued it at Senate estimates and I think at one stage—
Senator Collins, do not sell yourself short, because you could not, even if you tried your hardest, do worse than the non-answers we got at Senate estimates in relation to this. We had certain people complaining that we had put about 200-plus questions on notice about these issues and then all we get is: 'Well, the decision is the decision because it is the decision, and that is the reason why—because it is decision—and people looked at the decision and confirmed the decision.'
But when you then ask, 'What is the decision and what is the public policy reason behind the decision?' it is, 'Well, this body made the decision.' That is not a sufficient explanation, especially when somebody who has been delivering an excellent service has been cut out of the marketplace in this manner. That person's name is well known; it is Dr John Culvenor. Why should he and the way he does business be cut out of the marketplace, especially when he has got accolades from Commonwealth departments and agencies? It still defies any logic, any explanation, other than somebody has tapped somebody on the shoulder to say, 'If we can get rid of this exceptionally good provider it might open up the marketplace for us to provide that training service and charge for it.' I just wonder whether certain trade unions might be seeing a potential market opening for themselves.
As I understand it, this issue actually predates harmonisation but I am happy to explore it in this context, as I can understand that for some providers it is bringing things to a fine point. It goes back to the guidelines about delivery of training and, as you have indicated, the decision that was made by the SRCC on those guidelines.
I am going to explore this partly from personal experience, and that is that there is some training that is obviously appropriate for online delivery but there are some training components that are not regarded as appropriate for online delivery. Certainly many university courses structure a compromise between the two, but the difficulty as I understand it with these guidelines is the requirement that a trainee attend. From my somewhat dated understanding of health and safety training courses, the training that deals with developing skills on negotiation with some level of role-play and experiential training is an important component. But to put a finer point on that would be relying more on my experience than what may have informed the SRCC's decision on how they proceeded in this instance.
The government recognises that a transition period is required for health and safety representatives to complete updated training on the new work health and safety laws. The bill currently allows 12 months for them to do so, after which time, if they have not completed updated training, they will no longer be able to exercise their powers under the Work Health and Safety Act to issue provisional improvement notices and to direct that work cease. This is addressing item 1 of these amendments.
The period of 12 months is consistent with nationally agreed principles for the transition to the new laws and strikes a balance between a smooth transition and recognition that new laws mean some changes and updated training is required. It is unclear why the opposition is seeking to extend to three years the period for which previous training is recognised while at the same time seeking to expand the pool of training courses recognised under the new regime beyond those accredited under current arrangements.
With respect to item 2, the second amendment proposed by the opposition would allow training providers whose accreditation may have lapsed some years ago to provide training under the new laws without having to satisfy the current guidelines issued by the commission or any future guidelines developed and agreed by occupational health and safety regulators. The Safety, Rehabilitation and Compensation Commission is currently responsible for the accreditation of training courses for health and safety representatives under the current Commonwealth Occupational Health and Safety Act. To assist training providers, they have established clear guidelines for the accreditation of training courses. The intention is for training courses that are currently accredited under the Occupational Health and Safety Act to be recognised on a transitional basis following commencement of the new work health and safety laws to ensure the continued availability of courses.
The accreditation process is an important safeguard to ensure health and safety representatives receive quality training at this vital time as we transition to the new laws. Consequently, the Commonwealth does not support an amendment which seeks to override decisions made by the independent Safety, Rehabilitation and Compensation Commission under the current Occupational Health and Safety Act. The proposed amendment would grant accreditation to training providers who do not hold current accreditation under the current guidelines issued by the SRCC in 2010 but who held accreditation under previous guidelines for health and safety representative training. In doing so, the proposed amendment would undermine the integrity of the accreditation process. With respect to the particular training provider you referred to, my understanding is that he has chosen not to seek accreditation under the current arrangements.
The fingers on the keyboard that provided that answer to the parliamentary secretary belong, I detect, to the same people who provided the answers at Senate estimates, because once again it is basically, 'The decision is the decision is the decision.' Dr Culvenor has a proven methodology. It has worked exceptionally well. People have complimented him on it and he sees no reason why a trainer with a proven method should be forced to change to a lesser-performing method. That prompts me to ask: why? What were the perceived deficiencies in Dr Culvenor's training methods, which delivered outcomes that agencies complimented him about, that made it so important that this legislation rule out his methodology? What are we interested in here? Is it the process or the outcome we are interested in? If it is the outcome and the training people get, the accolades given by Commonwealth agencies and departments to Dr Culvenor speak for themselves. So that cannot be the reason; it has to be something else. But we have continually been denied any genuine rationale other than: 'It is the decision.' We know it is the decision. We want to know what underpins that decision.
As I indicated earlier, I think this issue predates harmonisation. I have been happy to explore it in terms of how the current circumstances relate to it. But my understanding, with respect to what informed the SRCC in reaching its decision about the guideline requiring attendance at face-to-face training, was that it was an employee survey which demonstrated a significant preference by employees for training which is face to face. I mentioned earlier in my discussion that I can understand that preference from a professional training point of view. I certainly participated in training programs which were a combination of both. There are simply some areas of skill development which require direct one-to-one or face-to-face contact.
But the employees and employers who went through the—if I can use the term—Dr Culvenor process got exceptionally good results. You did not need a survey because the agencies and departments wrote in saying how exceptionally good the training was. So why would you discount it? I would have thought that, in this age, even if 80 per cent of employees were to say in a survey, 'We prefer five days face to face so we can be out of the workplace for five days straight because that might actually suit our personal purposes somewhat better than other arrangements'—I do not know what the motives may have been—you would look beyond that. If 20 per cent or even 10 per cent of employees can, or prefer to, achieve the required results through other methods—and I understand that 26 per cent of the accredited courses are different but achieve the outcomes—why would you rule them out? That surely should be the test—the outcomes. If the outcomes are good, why would you say, just because some employees want something else—although, nevertheless, the outcome is good—that we are going to legislate to ensure that this particular type of delivery of training will, in effect, be outlawed? Yet again, no rational explanation has been provided.
I thank Senator Abetz and I do not want to interrupt his line of questioning, but I do have a question for the parliamentary secretary. Parliamentary Secretary, you would be conscious that workplace relations and workplace health and safety are not areas of policy that I closely follow, but I have been sitting in my office all afternoon watching this debate today and I have been very interested—and I know a lot of my colleagues have been interested as well. I have been following the questions Senator Abetz has been putting to you and the answers you have given. The debate, I think, has been very useful in clarifying many of the issues on this bill and, I might say, even a little more broadly.
This is what I want to put to the parliamentary secretary: this is a debate which I would like to continue to follow. I am conscious that Senator Abetz has some other amendments to move which I think may well attract majority support in this chamber. But, Parliamentary Secretary, you are aware that tonight, in the 40 minutes left to us, we have to deal with the Corporations (Fees) Amendment Bill, the Auditor-General Amendment Bill, the Personal Property Securities Amendment (Registration Commencement) Bill, the Competition and Consumer Amendment Bill (No.1) and the Broadcasting Services Amendment (Review of Future Uses of Broadcasting Services Bands Spectrum) Bill. We have to do that in a very limited period of time. I do not want to curtail this debate because, as I say, it is interesting. Good considered answers are being given, if I may complement the parliamentary secretary, although they are not always fulsome. I would like to follow this debate further. I think there is a lot of good coming out of it. In spite of the derision of some members on the government side, a lot of people listen to these debates on the radio. I think the people of Australia would like to hear this debate go through to its conclusion.
We have Monday, Tuesday and Wednesday set aside for parliamentary sittings. That is something the Senate agreed upon nine months ago and it has not been changed. I am not aware of what is on the agenda for those three days. In fact, I have tried to find out but the government seems to have no legislation planned for the days set aside. So my question to the parliamentary secretary is: would you be prepared to come back on Monday, Tuesday and Wednesday so we can complete the debate on this bill, so that I and other senators who are following this very closely could get to a conclusion and so that Senator Abetz could move his amendments, which I believe will attract majority support in the chamber?
I emphasise that there are three days set out next week and as far as I am aware there are no listed agenda items from the government manager—but then the government manager is not terribly good at organising the chamber. I do not want to raise issues but it would seem like a good opportunity with an important bill before us, a bill which I think demands very good debate. Unfortunately, in the last three or four weeks we have seen the most complex legislation this parliament has seen for a decade—that is, the 18 carbon tax bills—rammed through this Senate without sufficient debate. Some bills were not even mentioned. This week we have had Monday, Tuesday and Wednesday—
Thank you, Chairman. I appreciate your guidance. I can understand the why Senator Ludlam is very concerned. He really does not like me pointing out that the Greens have been part of this curtailment of democracy by preventing debate on many bills, including this one and including the five we are about to do.
. And perhaps next time you will think twice before you curtail debate in the chamber.
The TEMPORARY CHAIRMAN (20:25): Senator Macdonald, you should address your remarks to the chair and not engage in an exchange with Senator Ludlam.
I am sorry, Mr Chairman. I have been attacked by Senator Ludlam by way of interjection. I seek your guidance as chair to protect me from these penetrating interjections which are, of course, disorderly. I have been distracted from what I am saying. I repeat: this is a very important debate. It is being followed in every office of this building and the people of Australia are listening. It is not a debate which should be rushed. Senator Abetz's amendment should be dealt with properly. We have three days set aside for a discussion on bills so I ask the parliamentary secretary to agree to come back on Monday, Tuesday and Wednesday. Of course, we will all be here because that is what the rules and regulations of the parliament say.
What I am saying is related to the bill because I want to hear it fully explained. I concede it is not my area but I am following the debate very closely and becoming an expert from hearing the interaction between Senator Collins and Senator Abetz. I am very keen to hear the amendments. Parliamentary Secretary, would you come back next week so that we can finish this without having to rush it through in the next 30 minutes?
I am happy to respond on a range of issues. My understanding of where we were just ahead of Senator Macdonald's contribution was on the last amendment and we were close to wrapping up—not to put words in Senator Abetz mouth. Senator Macdonald, in relation to your question about my preparedness for next week, I will simply refer that to the Manager of Government Business. It is not my role in this bill to talk about ongoing procedures of the chamber. I am happy to relay your question to Senator Ludwig.
Going back to the issues of substance remaining in this matter, one issue Senator Abetz was on before we went to Senator Macdonald was still about the evaluation of training providers. I am not in a position to personally gauge how effective the evaluation was of the doctor's program. Certainly any training program can gather some level of endorsement. How effective the actual evaluation was is not knowledge I hold at the moment but I must admit I would have some level of confidence in the SRCC's evaluation process, if they did indeed establish one. So the information I gave you about a survey which had been conducted about employee preferences in how training is delivered I suspect is probably an evaluation which was specifically targeted at determining what was the appropriate training which should be part of the guidelines. That is not to say that the doctor referred to has not delivered competent training. I must admit my impressions of the value of online workplace training that our own employees receive has not been great. I have not been enthralled with the quality of the online training courses in this particular space from my own experience as an employer. But until such time as I could compare the evaluation methods to which you refer, or indeed drill further into the quality of the SRCC's training and the evaluations of this doctor, I am not in a position to comment further.
The one remaining matter, if Senator Abetz is happy to move onto that, is the question about the differential between the ABCC and the work health and safety regulator powers to compel production of information. I can indicate that both the current Australian Building and Construction Commissioner and the proposed work health safety regulator can compel individuals to provide information. However, in both instances this is subject to the use of derivative use immunity, which prevents that information from being used against the individual, so my impression earlier was not quite accurate. There are areas of difference, but I will come to those in a moment.
Under the current BCII Act the power to compel the person to attend an interview can be used as a power of first rather than last resort, although on this point it is important to note that the current commissioner does, as a matter of practice, exhaust all other avenues of information gathering before using these powers. Under the Work Health and Safety Bill the power to compel a person to attend an interview can only be used as a last resort. The current BCII bill which is before the House also seeks to ensure that this power is only used as a last resort. The current BCII bill will also introduce a range of other safeguards with respect to coercive powers. These differ from the Work Health and Safety Bill, and reflect the fact that the maximum penalty for noncompliance under the BCII legislation is six months imprisonment. The Work Health and Safety Bill does not impose custodial sentences for noncompliance in relation to information-gathering powers.
What is inbuilt with the accreditation of these occupational health and safety people in different industries? For instance, foundries are very different to the crane industry. There are common things—people needing steel capped boots, safety glasses and gloves—but when we are talking about foundries, where people are at the molten metal face, and about people who are slinging a load for a crane, what assurances does the Senate have that the people conducting these courses are specific to an industry and that they specifically understand the industry that they are dealing with?
Can I perhaps rephrase the question to see that I have it correct in my mind? Are you asking what assures us that the training providers are delivering relevant training for particular sectors of industry?
The answer to that is essentially that the training itself is relatively generic but providers are in circumstances where they will tailor that generic training to the particular industries or sectors to which they seek to deliver the training. So if you are working in a particular sector the appropriate thing would be to find a training provider who focuses on delivery for that sector. If it is a foundry, or if you are dealing with heavy metals or the like, then the training marketplace is where you would look to find those providers specialising in delivery for those sorts of areas. Providers are in fact encouraged to do so.
Should I take it that, in the case of foundries, the training provider would consult with the Australian Foundry Institute to gain its input into health and safety matters when dealing with electric induction furnaces, heat treatment or whatever it may be? I know that the theory and the reality at the coalface for a lot of these things are set widely apart. I know that it concerns a lot of small businesses, medium sized businesses and large businesses that on a lot of occasions there is a gap between the practicality, the reality, and the legislation.
I understand your point, Senator Madigan, and this is why you will generally find that providers of training in this type of area seek to market their product by attracting the very types of endorsements that you are talking about. For foundries, that association would obviously be one that providers would be seeking endorsement from. For the retail sector it would be the relevant retailers' association, and so on sector by sector. It is part of the marketing of their product to attract those types of endorsements to demonstrate to trainees or to employers that they are delivering relevant training.
As I understand it, the government's explanation for not allowing the re-accreditation of the approach taken by Dr John Culvenor is not that the result was in any way deficient, or that the training was deficient. There was nothing wrong with the course. It was simply based on a survey of employees as to the type of training they might prefer. That was my understanding. If that is wrong, please tell me.
It reminds me that democracy is not two wolves and a sheep getting together and voting on what is for dinner; we know the outcome, and it would not really be fair. Similarly with training one wonders why one would do a survey as to what people might or might not want. Surely the survey ought to be on the results. Was the training effective? Was it good? Did people like it? Did people think they learned something from it? As a result, are our workplaces safer because we have better trained people? According to all the Commonwealth agencies and departments, that was exactly the outcome with Dr Culvenor's training methodology. Yet we have just unilaterally ruled it out without any genuine reason being given. We allow different approaches within our education system. Some schools still have the old chalk and talk; others have an open classroom. What suits some people should not be the deciding factor as much as asking, 'What is the outcome at the end of the day?' If both methodologies deliver the same outcome, why would not you allow the two methodologies to co-exist? That is what we still do not have an answer to.
Senator Abetz, I indicated before that I am not in a position tonight to assess the quality of the evaluation of the doctor's work. It is one thing to have employers, government departments and some trainees provide endorsements and indicate that they were happy with the training. It is another thing to conduct a thorough evaluation.
The quality of the survey conducted by the SRCC in evaluating how to achieve best outcomes, a component of that being what trainees particularly feel that they want or benefit from, is certainly a relevant factor. But I am not at the moment in a position to evaluate the quality of the endorsements you refer to with respect to the doctor's package. What I am prepared to say is that, as far as I am aware, the SRCC conducted an evaluation on the question of how delivery should occur. A component of that was a survey of what training employees thought they would best benefit from, and that indicated that they valued face-to-face time.
In terms of delivery of training though, I would ask you to consider the areas that I referred to in part previously. I am certainly aware of changes in counselling training where a move away from full online delivery has been seen as appropriate. So in theory you could be a trainer of counsellors who previously provided online training and who, if you are not prepared to change your practice, will no longer be able to deliver training to counsellors who would need to be endorsed to provide counselling.
Similarly with mediators, whether they are industrial mediators or operating in other areas, there is a requirement that at least a certain level of training delivery be provided face to face. This is not a new issue. Certainly if the doctor had been providing competent training I cannot understand any reason why he would not determine to adjust his package to be able to deliver training under the new guidelines.
We have canvassed this issue at some length, and I have done so at estimates with questions on notice and even in the open Senate because, as I have said before, the employees and employers for whom this Dr Culvenor provided training said it was exceptionally good. He did have a component of face-to-face and practical experiences, which is what made his methodology so good. The online training was just something I introduced as a separate component. I thought Mr Rudd was delivering laptops. I could have mentioned that in the censure motion today as another failure by the government, but when you have such a wealth of examples to draw upon you forget some of them. In relation to the laptops in schools, why on earth was that seen as such a dynamic, brand new idea in 2007 and something that was going to revolutionise education? Indeed, it was part of the education revolution. That is how the NBN is being sold—people can learn online. But now, all of a sudden, they cannot for work health and safety training. It unfortunately does not mesh with the government's other propaganda in relation to these schemes of the NBN, laptops for every student et cetera.
Let's move on. In terms of HSR training, if someone is working on an offshore rig and has to go to training, are they still paid their full pay and allowances?
I direct Senator Abetz to provision 72(4), which indicates that:
Any time that a health and safety representative 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.
I thought that would be the answer. Can the government explain the public policy reasoning for somebody being paid danger money on an offshore rig, for example, then being paid danger money whilst that person is ensconced in a metropolitan hotel receiving training? How do we justify that that person, who is no longer in any danger, is going to be paid danger money for appearing at a training course that—surprise, surprise!—will be five days of face to face in a nice hotel? Why would these workers be paid danger money in those circumstances?
Senator Abetz obviously has some different experiences in the delivery of training of this character. I can certainly recall from my past some not particularly pleasant non-city-based training venues. That is an aside. The rationale behind the provision is that there be no disincentive for employees to engage in training.
So people are paid danger money in recognition of the particular dangers they face on a, one would imagine, day-to-day basis. Where is the incentive, then, to get rid of those dangers for which they are remuneratively compensated? It does seem as though certain people, should they wish to, could rort the scheme. If their job is on an oil rig clearly they will not be doing their training on the oil rig, therefore they will need to be accommodated somewhere, undoubtedly in a hotel, and one would imagine the training would take place there as well and they would get substantial benefits.
Perhaps I need to elaborate a little further so that Senator Abetz understands the differential experiences that are covered here. I am thinking myself of some examples from the retail industry where, for instance, someone undertaking health and safety training would potentially forgo a shift penalty for work they do at particular hours if they were to not carry out their regular work but go off and do training at another venue. You are talking about people who might ordinarily work a Saturday but the training is conducted Monday to Friday. They would lose, as Senator Abetz is suggesting, their regular income if they were to participate in training and that would not be appropriate.
If a health and safety representative resigns and a new health and safety representative is elected, then indeed there is a three-month period and there would be the requirement that the new health and safety representative go through training. But that is no different from any other retention issue that employers face. If someone resigns there are costs associated with replacing them and you would be aware, as am I, of the extraordinary lengths that sensible employers go to to avoid those costs. The same would apply with respect to seeking to maintain valuable health and safety representatives.
The scenario I can foresee is that if there is a particular workforce on a particular shop floor that might be minded to provide the employer with a bit of pain, you could get somebody appointed, let them go through the training and, once having received the training, they could resign and immediately elect somebody else, who then gets the five days off work—which means they will not be productive—and so go through a chain of events which could impose a substantial cost, especially for a small business. The plight of a small business faced with what in effect would be a type of industrial action without industrial action actually being taken clearly has not been considered in any detail.
These types of requirements have existed in some state jurisdictions for some time. I have just checked with the officers from the Commonwealth's point of view—and certainly from my own experience I have never been apprised of such mischief occurring.
So it will never occur—thank you very much. Businesses that go through the responsible task of getting independent and professional advice on their workplaces—from people who have had more than just five days training, who do a full assessment and then a regular reassessment of the workplace because the employer is concerned about work health and safety issues—would be incurring a double whammy. So did the government consider the benefits of providing exemptions to those businesses that seriously engage independent, professional advice in relation to these types of issues? There are bodies that provide that sort of advice and do assessments. Indeed, I have been to some businesses in Queensland, in fact in Dr Emerson's electorate, as I recall, where the employer does that and has done for a number of years. He now finds that, having regularly expended all that money, he will now have to send an employee for a five-day training course at extra expense to his business. He is now contemplating dropping the independent, professional assessments that he was getting annually, because it is one or the other: one that he will have to do under this legislation or the other that is not a legislative requirement.
I will take you to the bill's objects, specifically to clause 3(1)(b):
(b) providing for fair and effective workplace representation, consultation, co-operation and issue resolution in relation to work health and safety;
Under this regime it will be the workers' right to determine whether they wish to have representation. That said, though, I have sought from the department advice as to whether, to their knowledge, any exemption regime has ever been raised as a policy issue for consideration or been presented by any of the stakeholders consulted. I must admit that it is the first time it has been suggested. That is perhaps because essentially all of the parties engaged in this process have accepted that the fundamental objective is to give workers the right to representation in relation to their health and safety.
Has an analysis been done on the potential cost to employers of this training? It is five days that the employee will not be in the workplace producing goods at Senator Madigan's foundry or whatever it might be and so will not be producing products to sell. That would be a very real cost to the business. Has any assessment been done of the consequences of that as a total figure?
Whilst I can indicate that the issue and the potential costs associated with it would have been covered in the regulation impact statement, I cannot identify for you at the moment whether there was a specific item to which we can refer. I can indicate though that, if you look at this issue jurisdiction by jurisdiction, you will see that those costs have been borne by industry for quite some time—for longer than I can even recall—in some jurisdictions, as opposed to others. Question put:
That the amendments (Senator Abetz's) be agreed to.
The committee divided. [21:01]
(The Chairman—Senator Parry)
Bills agreed to.
Bills reported without amendments; report adopted.