Jackie Kelly (Lindsay, Liberal Party) Share this | Hansard source

It is very interesting that the previous speaker is standing up for the New South Wales Workers Compensation Act 1987 over the proposals put here before the parliament in the Howard-Vaile government’s Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006. The design of the New South Wales occupational health and safety legislation is completely flawed. It creates very dangerous work cultures in New South Wales because it is based on the presumption of guilt for some parties and minimal application of liability for others. The law applies a different measure of work safety responsibility and liability to different persons in the workplace and encourages unsafe work cultures. It distorts rather than applies the internationally accepted principles of occupational health and safety legislation where parties are held liable for what they control within bounds of what is reasonable and practicable.

I know the previous speaker, the member for Perth, had a lot to say about what is reasonable. The courts have adjudicated reasonableness for centuries, but it does change. What was reasonable in 1901 is clearly going to be different from what is reasonable in 2006. ‘Reasonable’ has a very reasonable definition within the judicial system in Australia. It is an entirely appropriate description to be used in any legislation. I think the previous speaker needs to go back to basic drafting principles. You do not have to describe reasonableness, but you know it when you see it and so will the courts in any litigation under this bill.

Specifically, the laws in New South Wales breach notions of justice by creating presumptions of guilt for certain parties and presumptions of innocence for others, even though the offences in question are identical. They deny full rights of appeal. Under the New South Wales occupational health and safety legislation, prosecutions can be done in a jurisdiction—namely the Industrial Relations Court—which is not competent for that purpose and allows parties, particularly unions, with conflicts of interest to conduct those prosecutions. I believe that it is a conflict of interest to allow unions which prosecute occupational health and safety breaches to collect up to half of the resulting fines.

I have been personally subject to this type of intimidation by the unions since my vote in this House on the Work Choices legislation. Let me tell the residents of Lindsay that I voted for that bill because Work Choices works. We have seen a dramatic rise in full-time employment positions and we have seen a 30-year low in unemployment—down to 4.2 per cent in Lindsay. Yet the unions are standing over anyone, particularly 20 members on this side of the House. Just check out the union websites. We are being targeted personally in our capacity as members of parliament for voting for the Work Choices legislation, and one of the things they use is the New South Wales occupational health and safety legislation.

The unions, on a vague complaint from the community—and I have FOIed who that complaint was from but understand it was from people in the community; read ‘unionists’—then assumed the right to enter my worksite at seven o’clock in the morning before any construction was underway, bring with them a Current Affairs crew and try to intimidate and bully, ostensibly under the guise of safety, saying, ‘We are here to ensure safety.’ Not even WorkCover believed that load of codswallop.

The legislative structure in New South Wales supposes employer guilt and breaches the very key notion of justice that you are presumed innocent until proved guilty. The New South Wales legislation of 2000 has predetermined an employer to be guilty, built on the way he has designed his workplace. Employers and the self-employed in New South Wales are charged with an absolute OH&S obligation under the act which is not measured against what they control or contained within the parameters of what is reasonably practicable.

I think that would be fair. It is codified in international treaties that we have signed under this subject heading. New South Wales has really just caved in to union pressure to encourage unions to have more power than the parliament and the judiciary and for the unions to have all sorts of intimidatory factors—to what I believe is basically contributions to their Christmas fund rather than having a genuine interest in workers’ safety. The normal processes of justice are distorted and in some cases removed, including in situations where not only fines but potential jail terms can be imposed.

Work safety is too important an issue for games to be played. Laws cannot make people behave safely. Laws can set the framework within which work cultures, systems and behaviours are formed, but the laws must imbue people with confidence that obligations and responsibilities are going to be applied equitably, fairly and with commonsense. The principles of justice must apply. If laws fail people in these areas, people will conspire to avoid their obligations for fear of unjust laws. This will set in place very unsafe work cultures and workers will be placed at risk.

Amendments to the legislation before us today were announced earlier this year as part of the 2006-07 budget and are intended to maintain viability and improve the administration and provision of benefits. These amendments reinforce the Commonwealth’s commitment to workplace health and safety. As I have said before, Work Choices works. I believe that if the states do not get their act together in this area of occupational health and safety then there is room for the Commonwealth to move in this area. WorkCover in New South Wales is seeing a lot of small businesses go under as a recession looms. Some relief from WorkCover costs would provide a major incentive for small businesses in New South Wales to keep going and to offset a few of the difficulties they are experiencing, given the recession that the New South Wales government is intent on imposing on the residents of New South Wales.

The Safety, Rehabilitation and Compensation Act 1988 is administered by the Safety, Rehabilitation and Compensation Commission and Comcare, including the provision of advice and assistance to encourage compliance and enforcement of obligations under the act. The Department of Employment and Workplace Relations advise the minister on policy matters arising under the act and are responsible for advancing any legislative changes required. That is why I always say that we need to keep on with our Work Choices program. It has worked to date. We will not shy away from any future legislative changes that are required, and we are here today moving forward again.

Significant amendments have been made to emphasise a focus on prevention and compliance. The previous speaker was worried about some ancillary matters, but these amendments have inserted very strong enforcement regimes based on criminal and civil sanctions for situations where duties are not met. Those obligations are within employers’ control and within what is considered to be reasonably practicable—and we all know what that means. They also ensure that employers and employees covered by the Commonwealth OH&S act are not liable for prosecution under the industrial manslaughter laws introduced in the Australian Capital Territory or under any similar industrial manslaughter laws enacted by a state or territory.

Do beware that the ALP governments of the states are under significant pressure from the union movement to introduce these manslaughter laws. They are disastrous for any small business person who has tried to do the right thing—to comply with the regulations, move ahead and stay up to speed with what is reasonably practicable for things within their control. Under these automatic manslaughter laws someone without any direct control, except ownership, can be held liable for extremely unfortunate accidents in the workplace. And these accidents should not be happening. As a nation, we should be moving towards ensuring that there are no further accidents of this kind. For example, the mining industry in Australia has come a long way in 100 years, not from mandating that you will be guilty of manslaughter for dereliction in this area but from really enforcing what is considered reasonable in this day and age: this is what you must achieve and this is what you must do in order to keep your workforce safe. It should be pointed out that the overall aim of any occupation health and safety legislation should be directed towards preventing workplace deaths and injuries and providing a safe workplace environment for all rather than towards applying punishment to offenders after an accident or an event has occurred.

In Australia, work safety laws are primarily the responsibility of the state governments. In March 2005, Australia assumed an obligation to adhere to the international OH&S principles under an international treaty. The international treaty obligations are set out in convention No. 155 of the International Labour Organisation, and signatory countries are required to adopt OH&S laws that apply liabilities and responsibilities according to what people control within what is reasonably practicable for them to do. That is in accordance with the Roben principles, the guiding principles that impose obligations on all parties involved in all aspects of work situations, and no-one is exempt.

This legislation is under our international obligations under that treaty. There is room to move in this area, but I would like to see a more responsible position taken by the state governments. They should cease caving in to the union movement and stand up to them for once. They should curb the power of the unions to intimidate owner-builders, small business men and even multinationals, and particularly to intimidate companies subject to a major closure. A large firm doing a concrete pour or something like that can be closed down over a safety breach by a union with a vested interest. This is the type of legislation that has caused the recession we are having in New South Wales. Other states, with legislation that is not so draconian, are going ahead. I for one support the bill. I am totally opposed to the previous speaker’s suggestions about the direction in which occupational health and safety in Australia should go.

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