Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

I move:

(1) Schedule 2, item 1, page 4 (lines 5 to 10), omit the item.

It is important to note that there is much in this bill that the coalition agrees to, but we do propose a straightforward, common-sense amendment. The remarks by members opposite have all focused around the issue of an employee being eligible to claim for an injury during a recess break from work and reasons why that might seem perfectly logical. Exception was taken to the example that I previously mentioned about an employee who might be going scuba diving in their break. There may have been an element of rhetorical flourish in that example, but I really make the point that it does illustrate the problem that we have with this bill. In fact, a very similar example was presented to coalition senators.

An employee injured during a break from work, who leaves a work site during a lunch break to purchase a meal at a nearby shop, would not be eligible to claim for such an injury. This would be reversed under changes proposed in this bill, thereby allowing a worker to claim for an injury suffered when temporarily absent from their normal workplace during such a recess. Obviously this expands the extent to which an employer has liability. It also removes the ability of an employer to control the degree of safety compliance of a worker. For example, the worker might choose to cross a busy road rather than use a pedestrian crossing. It comes down to personal responsibility, and employees do need to take that personal responsibility for themselves.

The Productivity Commission inquiry found that the employer's ability to exert control over workplace recess breaks and social activities is actually a relevant consideration. It is not reasonable that an employer should be liable for circumstances that are completely outside the employer's ability to control or to monitor or where they do not have any exercise over what their employee does. The Productivity Commission did recognise that and it recommended that coverage for recess breaks and work related events be restricted, on the basis of employer control, to those undertaken at workplaces and employer sanctioned events. So, in line with recommendation 13 of the government's own review and the Productivity Commission's 2004 recommendation that claims arising from injuries sustained during off-site recess breaks should be excluded, the coalition will amend the bill proposed by the government to remove the changes to recess claims.

Mention has been made by members opposite of the coalition report. Our minority report is instructive in this. During the inquiry, various pieces of evidence were taken by coalition senators, leading them to explain their concerns relating particularly to the reinstatement of claims arising from off-site recess break injuries, the introduction of time limits for claim determination and amending the suspension provisions set out in section 36(4) of the SRC Act. Coverage for off-site recess break claims was removed from the SRC Act in April 2007 through the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act. The department in its report set out the reasons for the removal. The removal of this coverage from the SRC Act in April 2007 was through adoption of a recommendation made by the Productivity Commission in its 2004 report. The principle underlying that recommendation is that employers should be liable only for injuries and illnesses resulting from activities which they are in a position to control. Employers cannot control circumstances associated with journeys to and from work or with recess breaks away from employers' premises. It was therefore decided by the previous government that it is not appropriate for injuries sustained at these times to be covered by workers compensation.

In response to questioning by Senator Back during the inquiry, the department gave evidence confirming that if, during their lunch break, an employee went snorkelling and dived into the water and hit their head they would be covered under the proposed amendment. Senator Back said:

So what if the person in their lunch break decided they were close enough to the beach, went snorkelling, dived into the water and hit their head? Under this proposed amendment would they actually be covered for that activity?

The response was:

Yes, they would.

Coalition senators considered that this evidence from the department reinforces the principle underlying the Productivity Commission's recommendation that employers should be liable only for injuries and illnesses resulting from activities which they are in a position to control.

In further questioning during the inquiry the department was unable to provide any compelling information as to what had changed since both the Productivity Commission and the department made their recommendations that off-site recess breaks not be covered by the scheme. I commend my amendment to the House. (Time expired)

Kate Ellis (Adelaide, Australian Labor Party, Minister for Employment Participation and Childcare) Share this | Link to this | Hansard source

The government will not be supporting the amendment put forward by the coalition, for the reasons that I outlined in my speech in reply to the second reading debate. To reiterate, a number of practical difficulties have resulted from the removal of coverage of off-site recess breaks. These problems include the inequity to some employees whose employers do not provide on-site facilities for these recess breaks. This is clearly an issue that needs to be addressed, but there is also the difficulty in determining what would or would not constitute an off-site recess break. The example I gave previously was a Telstra technician who is on the road and whose work site really is their vehicle. The opposition's suggestion for how to determine what would or what would not constitute an off-site recess break in these examples is puzzling to us.

A further inconsistency arises in that an employee would be covered when attending employer sanctioned courses at educational institutions both during and outside normal work hours but might not be covered during lunch breaks.

These are sensible and important changes which the government is putting forward. The opposition's amendment seeks to remove a major part of the bill before the House and we will be opposing it.

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

I want to reiterate that coalition senators and the coalition generally consider that an employer's liability to an employee should continue to be limited to the circumstances where the employer has that element of control and that it is unreasonable to make employers liable for all types of injuries, and note that the continued exclusion of off-site recess breaks will not preclude an employee pursuing a remedy in the event that they are injured. There are other options available to an employee.

The government commissioned and received a report. The report recommended that claims arising from injuries sustained during off-site recess breaks continue to be excluded. In evidence to the committee, there was no evidence from the department or information from the Productivity Commission that demonstrated a reason for the government not to accept recommendation 13 of the report that it commissioned. I commend my amendment to the House.

Question put:

That the amendment (Ms Ley's) be agreed to.

The House divided. [11:22]

(The Speaker—Mr Harry Jenkins)

Question negatived.

Bill agreed to.