The Hon. R.I. LUCAS (12:11): I rise to speak to the second reading of the Work Health and Safety Bill. This has been a controversial piece of legislation which was first introduced what seems like many years ago but was actually in April last year by the then minister, the then leader of the government, the Hon. Bernard Finnigan. In April last year, or around that time, the government and the minister collectively patted themselves on the back indicating that they were trailblazers, the first of the jurisdictions to introduce the legislation. They wanted to see the early passage of the bill.
As my lengthy contribution today will outline, there has been significant controversy about the legislation before the chamber at the moment. There has been increasing opposition and there remains, of course, strong support for the government’s position from a number of stakeholders as well.
The prime reason given for this legislation is that this was part of a supposedly national agreement between all the states and territories and the commonwealth government on the introduction of harmonised legislation; that is, in essence, an agreed national takeover of occupational health and safety or, in this case, work health and safety legislation.
At the time, virtually all of the governments were of Labor orientation—not all, but virtually all—and, I guess, it was a touch easier for the governments at that particular stage to reach a unanimous agreement in relation to the proposition for national harmonised legislation.
First, I want to address what the current state of play is in relation to the major reason why there should be harmonised legislation. As we debate this in early 2012, the legislation has passed in the federal parliament, the Queensland parliament, the Northern Territory parliament and the Australian Capital Territory parliament. An amended version of the bill—not the harmonised or model bill—has passed the New South Wales parliament. The Legislative Council in New South Wales moved a series of amendments. Some of those, which everyone acknowledges are union-friendly amendments, were passed ultimately by the New South Wales parliament. The model bill suffered its first defeat in the New South Wales parliament when it was passed with the union-friendly amendments to the model bill.
The bill has still not been introduced into the Victorian parliament, bearing in mind that this was introduced in South Australia in April last year and the agreement was that it was to be up and operational with all the regulations and codes of practice by 1 January 2012. That was what we were told: everyone had agreed and would implement that. In Victoria, obviously one of the bigger states in the federation, it has not even been introduced into the parliament. The Victorian Liberal government has indicated significant concerns to the model bill. I do not propose in this contribution to go through all of their concerns, but they have indicated significant concerns. They have—and I will address this later—implemented a regulatory impact statement to be undertaken in Victoria, and the final copy of that regulatory impact statement is still not available.
Contrary to some media reports, the Victorian government has not at this stage finalised its position by saying that it is not going to proceed with work health and safety. I think it is fair to say that they will not proceed with the current model bill. The prospects of the model bill passing through Victoria are very slim indeed. It is likely at the very least to be significantly amended in Victoria. There are some people who are suggesting that the Victorian government might not proceed at all but, as I said, contrary to media reports, they have not made that decision as we speak.
Their position, as their minister’s office advised me prior to this debate, is that they are awaiting the final copy of the regulatory impact statement and, at that stage, cabinet will consider its position and any possible amendments. However, the model bill will not be passed, in my judgement, in Victoria.
The bill has still not been introduced into the Western Australian parliament. Western Australia is interesting because supposedly we were going to have harmonised legislation, but all of the government and its advocates have always said, ‘Right from the word go, we always accepted it was a model bill,’ but Western Australia was not going to introduce the model bill. We always acknowledged that in at least four significant areas they were going to move amendments to the model legislation.
Western Australia are in a similar position to Victoria. They are instituting—and I will make some comments later on about the details of this—their own regulatory impact statement and they say that when they have received that they will make final judgements about the number, breadth and depth of the amendments that they would move to the model bill. But there is no prospect at all that there will be a model bill passed in Western Australia.
The bill has been introduced into parliament by the Labor government in Tasmania. There is significant opposition and concern in Tasmania as well. There was an amendment passed in the Legislative Council to delay the introduction of the bill until 1 January 2013 (a 12-month delay). We are told that the debate is going to resume in their House of Assembly (that amendment was moved in the Legislative Council) this month in March 2012. The ultimate position of the Tasmanian parliament is still up in the air in terms of what will or will not occur.
Clearly, there is significant concern in the Legislative Council to the degree that, in essence, they delayed the introduction until 2013. I think they will watch our debate here in South Australia with some interest because with all of this the debate from the governments has been that this is a national agreement and you cannot do anything that is different. If, at some stage, a jurisdiction moves in a different way and stands up and says, ‘Hey, we are not going to accept this,’ then that may have a ripple effect through other jurisdictions as well.
As members are aware, the bill was introduced in South Australia in April and it was passed by the House of Assembly. Ultimately its debate was adjourned by a majority of the Legislative Council late last year when the government was trying to force it through to be ready for recommencement of debate in February-March 2012.
The foolishness of the government’s position late last year when it said, ‘Yeah, we’re ready to go for 1 January 2012; let’s get this bill through in November-December’ is quite apparent now. To think, as we look at where we are now having this debate, that this government thought it was in a position to impose this bill (600 or 700 pages of regulations and thousands of pages of codes of practice) on an industry on 1 January 2012 was foolishness in the extreme. So, that is the national position.
In relation to two other matters in terms of summarising the national position, it is correct that in the federal debate my colleagues in the federal Coalition indicated and have subsequently indicated that they support the harmonisation of occupational health and safety laws in Australia. They have noted publicly that the Howard government got the ball rolling in relation to harmonisation.
They have indicated that they sought to move amendments in particular to a couple of the key areas. The control amendment, which I will discuss later, and the right to silence amendment are a couple of areas that they sought to move amendments in. The Labor government, together with the Greens, did not support those and the model bill went through the federal parliament. The Coalition ultimately did not oppose the legislation on the final vote in the federal parliament.
The other point I make in relation to the Liberal Party nationally is that there have been some media reports that the Queensland Liberal National Party that is currently in opposition has indicated that it will repeal the legislation if elected at this month’s election. We have spoken to the shadow minister in the area and he has confirmed for the public record, and I place it on the public record, that that is not a correct statement of their current position.
What they have indicated is that there are significant concerns with the legislation. Secondly, if elected, they will review the impact of the legislation in Queensland. Thirdly, subsequent to that, they would reserve the right as to whether they would seek to move amendments or not.
As members know, because Queensland is a unicameral system if the government decides it wants to make some changes to legislation it does not have the safety valve or, as some might see it, the impediment of an upper house to second-guess any decision it takes, so it may or may not have the capacity to amend the model bill.
When you go through it, the main argument for this was a COAG agreement and harmonised legislation (I will talk about the claims of supposed savings later), but these were the major claims for this, and it is clear that that target is unachievable; it will not happen. Irrespective of what we do in this chamber, it will not happen. There is not going to be harmonised legislation as envisaged by COAG and the various governments two or three years ago.
Clearly, an amended bill has passed in New South Wales. Clearly, any bill in Western Australia and Victoria—certainly in Western Australia’s case—will also be significantly amended, and in my judgement it is likely to be significantly amended in Victoria, although they have not said that publicly at this stage. It is my judgement that in South Australia whatever the final attitude is at the very least I suspect there will be significant amendment to the legislation.
Tasmania remains up in the air, because there is concern there and the Legislative Council has expressed that so far. In Queensland, if a Liberal National Party government is elected there is the potential for amendment too. So, the notion that there is an agreement for a model bill and harmonised legislation is out the door, out the window, unachievable, and will not happen. However you want to describe it, that is the reality. It was the goal but it is not going to happen, and this debate in this chamber needs to be conducted in the full knowledge of those particular facts.
I want to talk about the claimed benefits of harmonisation. The various governments and the federal Labor government have made many statements in relation to this, and I will refer to just one of those. In a release on 25 November 2011, minister and senator the Hon. Chris Evans issued a statement under the heading ‘Landmark model OHS legislation highlights WA and Victorian Governments’ failure’. This is the statement:
Australia is a step closer to nationally harmonised OHS laws that will generate productivity improvements of up to $2 billion a year and deliver safer workplaces for millions of Australians and their families.
Further on in the release it says:
‘The harmonised OHS laws reduce red tape saving business $250 million and improving safety in Australia’s workplaces,’ Senator Evans said.
The rest of the press release goes on to make those various statements. The claimed saving is $250 million a year, if it is completely harmonised, and productivity improvements will be $2 billion a year, if it is completely harmonised. They are based a regulatory impact statement which is on the SafeWork Australia website dated November 2011, part of which says:
While there will be one-off implementation costs, the quantitative analysis undertaken at the national level for adopting the model WHS Regulations indicates net benefits (i.e. after implementation costs) of around $250 million per annum to the Australian economy over each of the next 10 years. This estimate does not include expected productivity benefits. While noting the difficulties in estimating the productivity benefit, a reasonable conclusion would be that the reforms will provide a positive and meaningful productivity benefit. Specific figures were excluded from the quantitative analysis, largely due to the difficulties in providing a sufficiently robust estimate. Based on a review of the analysis in this RIS, productivity improvements in the order of $1.5 billion to $2 billion per annum over the next 10 years are considered likely. Multi-state businesses are expected to benefit from harmonisation by approximately $80 million per annum.
The first point I will make—and, to be fair, I am going to make this general comment and it will apply to a number of the estimates—is that it is notoriously difficult to estimate, and there are estimates by the government and its supporters and there are estimates by stakeholders who oppose the bill and people who have been employed by them.
It is difficult because, in the end, the consultants have to make assumptions and, let me assure members that you can always pick apart the assumptions and, therefore, the estimations made by consultants employed, all the way round. So, whilst I am going to be critical of these particular claims, I accept that one can apply the same sorts of criticism, potentially, to lots of the estimates that have been made. That is why I think you have then got to look at the detail of the legislation and make judgements as to, on balance, who is more likely to be right, and that is particularly going to be the case when I address some comments to housing affordability costs in South Australia later.
The reality about those claims from the federal government and the ministers such as the Hon. Mr Wortley, and others who are seeking support for the legislation, is they know they cannot and will not be achieved, because all of that analysis was done on the basis of harmonised legislation. All of that analysis was done on a model bill being passed and, therefore, it being easy for multi-state businesses and others to operate across all jurisdictions. As I have highlighted before, that is not going to happen and will not happen and, therefore, the analysis that has been quoted by this minister in this chamber, and others supporting the productivity benefits, needs to be considered in the new light that we are not going to see the model bill passed in all the jurisdictions.
On the other side of this equation a number of the industry groups have commissioned consultancies to look at the impact of the legislation on the economy. Again, reputable consultants Hudson Howells have been commissioned by, I believe, the Housing Industry Association. Their assessment, in letters that the HIA has written to members of parliament, is that if this bill is adopted in South Australia it will lead to up to 12,500 job losses every year, annual economic damage of up to $1.4 billion and the destruction of home affordability for thousands of young South Australians.
Similar claims are being made in other states as well in relation to the impact of the legislation on the state economy and by extension the national economy as well. The Victorian and Western Australian governments’ position is obviously important in relation to this. I want to refer to statements from the Hon. Gordon Rich-Phillips, who is the responsible minister in the Victorian government. On 14 September, under the heading ‘Important information missing in the Commonwealth Regulation Impact Statement for National Occupational Health and Safety harmonisation’ he said:
The Regulatory Impact Statement (RIS) for the proposed National Occupational Health and Safety harmonisation released by the Federal Minister…fails to include critical details on the impacts for Victoria.
Mr Rich-Phillips said:
…the Commonwealth had committed to including impacts in dollar terms for each state and territory.
That is, when they said they would do this regulatory impact statement their commitment was to include impacts in dollar terms for each state and territory. The statement continues:
The RIS released by the Commonwealth falls short of including the vital detail that should have been in the final impact statement. This leaves Victorian businesses in the dark on the potential costs of this proposed scheme. It is also concerning that the final RIS released by the Commonwealth varies considerably from the draft provided to state jurisdictions just one month ago and the projected benefits of the scheme have been significantly reduced.
Mr Rich-Phillips said Victoria would now complete further analysis of the final RIS provided by the Commonwealth and consider whether a separate Victorian RIS is required.
Ultimately, subsequent to that release, the Victorian government decided that it was so deficient that it needed to go ahead and commission its own regulatory impact statement because the commonwealth one was so deficient in terms of what the impact would be in Victoria. In Western Australia a similar position has been adopted. A statement on their government website answering the question ‘When will the model bill and model regulations start?’ says:
The Commonwealth Government’s Regulation Impact Statement (RIS) for the model WHS regulations is inadequate for Western Australia. As a result, a local RIS including public consultation in relation to the implementation of the model WHS regulations in WA is required. The process, which should take up to six months, has commenced. It is anticipated that the public consultation element of the process will be started around February 2012.
In order to aid its decision-making, this process will provide the Government with information and analysis about the consequences the model WHS regulations would have on workers, businesses, government and the economy if applied to Western Australian workplaces. In view of these circumstances, the date of implementation for the model laws in WA has not been determined and will need to be reassessed.
It is quite clear in Western Australia their process for this RIS is starting in February this year. It is going to take at least six months, which takes us through to round about August of this year before they get the results of that. It will need to be considered by cabinet and then they will have to decide. So the prospects of it even starting in Western Australia by 1 January 2013 are indeed slim.
Certainly, as they have indicated and as I said earlier, there will be significant amendments to the Western Australian legislation, the model bill in Western Australia, when it eventually is introduced, if it is introduced. It is clear then from the federal government’s viewpoint they conducted an albeit now inadequate regulatory impact statement. The Victorian and Western Australian governments have conceded that, because of the controversy and the varying claims, they needed to get more information about the impact on their businesses, their economy and their community. The same requests have been made of the South Australian government, as to whether it now acknowledges that it should have conducted, or should still conduct, its own regulatory impact statement, like Victoria and Western Australia, to see what the impact of this bill would be on the economy, on housing affordability, on small and large businesses, and on workers in South Australia.
Sadly, the minister and the Premier responsible are clearly not going to go down that particular pass. They continue to say to opponents, ‘Well, the commonwealth has done a regulatory impact statement.’ Even though they know it is inadequate and even though they know it no longer applies, they continue to say, ‘Well, there is a national agreement, there has been a national regulatory impact statement. We don’t have to better inform ourselves of the impact on the South Australian economy.’
Tied up with all of this has been this COAG process, which has been driving part of it. This is the claim that if the state government does not move down a particular pass the federal government will financially penalise the state, and the earlier statement I referred to from Senator Chris Evans referred to that in relation to Victoria and Western Australia.
The government’s advice to all of us is that under the national partnership agreement to achieve a seamless national economy, which was agreed at COAG in 2008, there is a total of $33 million over two years—that is financial year 2011-12, which is this financial year, and next financial year 2012-13—which is available to South Australia subject to it meeting the undertakings in the agreement.
The total payment of $33 million over two years is for achieving all 27 legislative priorities agreed by COAG in March 2011; 27 legislative priorities to get $33 million back over two years. The bill that we are debating is listed as one of the 10 priority items of the 27. In my view any possible loss to the state of South Australia because of not doing what the commonwealth says has been agreed will not be $33 million; it will be some unspecified component of the $33 million.
When that question is put to the government advocates they say that they do not know, and during any committee stage of this bill that will obviously be one of the questions we will need to put to the minister—or I suppose the minister could respond at the end of the second reading in terms of what Treasury advice is here. However the claims, by inference, that the government is making that it will lose $33 million if it does not proceed with this legislation are clearly not based on fact.
As I said, the $33 million is for achieving 27 legislative priorities, and this is one of 10 high priority areas. If you want to pro rata it, it might be somewhere between $1 million and $3 million; if the commonwealth decided that that was an even higher priority of the 10 high priorities it might be more than that, but it ain’t gonna be $33 million financial penalty in terms of the impact on the state budget. I think that is important, because that issue is being used as a sledgehammer to beat opponents of the legislation into potential submission.
What I found interesting—and as members will know I am new to the area of having responsibility for work health and safety legislation—is that in this debate the driver, which has constantly been referred to, is economic reform, cost savings to business and improvements and productivity gains to the national economy. Interestingly, as I said, the driver for the reform is not improved worker safety, and I want to address some comments in relation to that After all, surely the driver for harmonisation ought to be some evidence and argument that, by harmonising the laws, we will actually improve worker safety in South Australian workplaces. We could then make judgements as to whether this model bill, harmonised or not, is actually better for worker safety. Of course, there are judgements about better for business and better for the economy as well which need to be considered, but it should not be just the economic and business drivers that are pre-eminent in relation to consideration of the legislation.
I want to look at South Australia’s record on work safety and, as I said, I am new to this area. I note that the former minister, the Hon. Bernard Finnigan, on 2 March last year issued a press statement, titled ‘South Australia leads the way in reducing workplace injuries’. The Hon. Bernard Finnigan said:
South Australia leads the way in meeting nationally agreed targets to reduce workplace harm.
Industrial Relations Minister Bernard Finnigan says South Australia has been recognised as the best jurisdiction for reducing injury claims.
‘While we strive towards zero harm, and one injury is one too many, the published results are a pleasing outcome in terms of comparative performance,’ Mr Finnigan said.
‘All states and territories are working towards a 40 per cent reduction in injury claims across the 10 years to 2012, as agreed under the National OHS Strategy 2002-12.
‘Only two jurisdictions met the required rate of improvement to the end of 2008-09—
At that stage, that was 28 per cent—and South Australia leads the way with a 36.5pc improvement.’
The figures are contained in the 12th edition of the Comparative Performance Monitoring (CPM) Report.
That was the position in March of last year, as released by the former minister, prior to this debate about changes to the work health and safety legislation. For the benefit of this debate, I have updated the figures from the Hon. Bernard Finnigan. I seek leave to have incorporated into Hansard without my reading it a purely statistical table on work safety figures.
Indicator 2 – Incidence rates (claims per 1000 employees) and percentage improvement of serious* compensated injury and musculoskeletal claims by jurisdiction.
Base Period 06–07 07–08 08–09 09–10 prelim. 09–10 projected % improvement
SA 18.3 14.6 12.4 11.4 10.7 11.2 38.8
NSW 17.1 12.6 12.6 12.4 11.8 12.2 28.7
VIC 11.3 9.5 9.0 8.6 7.9 8.1 28.3
AUST GOVT 8.8 6.9 5.5 6.7 5.9 6.4 27.3
QLD 16.6 15.9 16.3 15.0 13.6 13.8 16.9
TAS 16.2 15.7 14.7 14.8 13.4 13.7 12.3
WA 12.5 12.3 12.3 11.7 10.5 11.0 12.0
NT 12.4 11.4 12.1 11.0 10.7 11.2 9.7
ACT 11.4 11.6 11.5 11.9 11.9 12.2 -7.0
SEACARE 36.3 27.1 26.8 34.3 36.6 36.6 -0.8
AUST 14.8 12.4 12.1 11.6 10.8 11.1 25.0
* Includes accepted workers’ compensation claims for temporary incapacity involving one or more weeks compensation
plus all claims for fatality and permanent incapacity.
** Percentage improvement from base period (2000–01 to 2002–03) to 2009–10 projected.
Source: Comparative Performance Monitoring Report 13th Edition – SafeWork Australia
The Hon. R.I. LUCAS: This table comes from the Comparative Performance Monitoring Report, edition 13, whereas the Hon. Mr Finnigan referred to the Comparative Performance Monitoring Report 12th edition. This shows, and let me quote: Indicator 2—Incidence rates (serious claims per 1,000 employees) and percentage improvement of serious* compensated injury and musculoskeletal claims by jurisdiction.
The base period is 2006-07. The most recent figures are now updated to 2009-10. What this report says, under the heading of Jurisdictional Progress, is ‘only South Australia exceeded the required rate of improvement to meet the target’. That is, of all the jurisdictions, only South Australia exceeded the required rate of improvement.
This table I have just incorporated shows that South Australia’s improvement figure was 38.8 per cent. In New South Wales, it was 28.7 per cent; in Victoria, 28.3 per cent; the Australian government, 27.3 per cent; Queensland, 16.9 per cent; Tasmania, 12.3 per cent; Western Australia, 12.0 per cent, the Northern Territory, 9.7 per cent; the Australian Capital Territory, negative 7.0 per cent; Seacare, negative 0.8 per cent; and then the Australian figure was 25.0 per cent.
Again, what that shows, on the most updated figures—and that was released in October of 2011—is that, under our existing occupational health and safety legislation, we continue (as boasted by the former minister) to lead all the jurisdictions in terms of work health and safety performance. The Hon. Mr Finnigan boasted proudly, back in March, of that improvement and performance. Similarly, we—not that we individually have anything to do with it, but businesses and workers working together under the existing law—still lead all jurisdictions in terms of our improvement: a 38.8 per cent improvement in the measured period compared to all of those other jurisdictions. Further on in the same report, under the heading of ‘Serious claims’, it states:
Indicator 5 shows that the Australian incidence rate for serious claims has steadily declined over the past four years, decreasing 9% from 14.9 to 13.5 claims per 1000 employees between 2005-06 and 2008-09. Preliminary data for 2009-10 indicates an incidence rate of 12.6 claims per 1000 employees. While it is expected that this rate will rise when updated data are available, the preliminary data indicate a continuing improvement in incidence rates.
Substantial falls in incidence rates from 2005-06 to 2008-09 were recorded by South Australia (down 30%), the Australian Government (down 20%), Northern Territory (down 15%), Victoria (down 14%), Tasmania (down 7%), Western Australia (down 6%) and New South Wales (down 5%).
There are a lot of other details in that report. I am not going to go through that report. Members can go to it if they want to inform themselves about our comparative performance.
What it is showing is that, whatever is occurring in South Australia under our existing legislation, Labor ministers were patting themselves on the back about it, businesses and workers should pat themselves on the back about it and we ought to be informed, as we approach this particular bill, as to making a judgement: does it actually improve worker safety or does it have the potential to, in essence, reduce our comparative performance in South Australia and do more harm for worker safety than what exists under the current legislation? Certainly, those who are making the claim that we should support the legislation need to indicate, because they are the ones advocating change, where in the legislation worker safety specifically will be improved as a result of the changes they want us to implement.
The second broad area of evidence is in relation to the WorkCover Annual Report. We have the most recent one of 2010-11, and I seek leave to have incorporated into Hansard, without my reading it, a purely statistical table on some WorkCover figures.
Graph 5: Total claims incurred by injury year for register employers
Year Number of Claims
*Source: WorkCover Annual Report 2010-11
The Hon. R.I. LUCAS: This is an annual production of figures which is on claim numbers for registered employers. It is on total claim numbers that WorkCover records, which is a reasonable indicator, obviously, of worker safety in the state.
What we see there is that, back in 2000-01, just on 10 years ago, the total claims incurred by injury year for registered employers in South Australia by WorkCover was 28,123. The most recent figure for 2010-11 in the WorkCover Annual Report is a very significant decline to 18,634. So, in the space of those 10 years, under the existing occupational health and safety legislation, we have almost 10,000 fewer claims off a base of 28,000 claims.
Now, that is a very significant improvement in worker safety. That is a very significant number in terms of what WorkCover, as the agency recording these things, has recorded. I think it was the Hon. Mr Finnigan who said that one claim is one too many. We accept that, but, under the existing legislation, we have seen, and continue to see, massive, significant improvement in terms of the recorded figures.
I will put a question to the minister, and he will obviously answer it at the second reading stage. I note that that particular table, when one compares the actual numbers in the 2010 11 report, is actually different from the 2009-10 report. When you look at the numbers for 2000-01 right through to 2008-09, the actual numbers in last year’s report for those years are different from the numbers in the WorkCover report. I do not expect the minister to know why that is the case, but certainly WorkCover should know.
Whilst the Hon. Mr Snelling is responsible for WorkCover, my question is to the minister, as he is in charge of the Work Health and Safety Bill: can he explain why the numbers are actually different? The trend is the same. Under the old numbers from last year’s report, the decline is from 26,610 down to 19,700 whereas, under the most recent report, the decline is from 28,123 down to 18,634. So, there has obviously been some re-calculation of 10 year’s worth of figures. The trend is the same, but the numbers are different, and I seek an answer from the minister as to the reasons for that.
In summarising those numbers, it was, as I said, surprising to me—being new to this debate—that most of this debate was about the economy, business and all those sorts of things, which are important. Clearly, if we are debating work health and safety, we ought to be looking at the impact on work health and safety, what has and has not been working in the existing laws and what has been our performance relative to other jurisdictions, and that ought to better inform us as to whether or not we should throw everything out by supporting the model legislation.
In summary, I think you can say that, from the figures from the comparative report and from WorkCover, we actually have a pretty good record in South Australia relative to the other jurisdictions under our existing legislation. The pressure is now back on the government, in my view, to say, ‘You now have to make the case as to why and how this model bill will actually improve work safety performance? There are other issues to be considered as well, but you explain to us how this bill will improve work safety performance’. Members will have to make judgements, as we all will, on the impact on housing affordability, the cost of doing business and the impact on the economy. They are important issues as well. This government and this minister need to say to us, ‘Okay; this is how this bill will actually improve work safety’ compared to the very significant improvements we are already achieving under the existing law.
The next topic I want to turn to is the critical issue of the impact on housing affordability in South Australia. All members know that housing affordability is a critical issue in South Australia. We have families struggling to continue to hold their homes or to purchase new homes. The ability to be able to purchase a new home is a dream for many—not all—young South Australians. I think every member would have to agree that, in recent years, housing affordability has been made harder and harder for many young, struggling couples and families in South Australia.
Those of us in this chamber who are generally older look at our children or our grandchildren and try to work out how on earth they can afford mortgages of $300,000 or so (which appears to be about the average these days) to get into first homes. It is beyond comprehension. In many cases, of course, parents and grandparents, and others, assist with trying to get them into a first home. The issue of this bill in terms of its impact on housing affordability has to be prominent and it has to be closely considered.
Local industry groups, such as the Housing Industry Association (HIA), have informed our debate and our understanding of this bill by commissioning research and doing their own analysis in terms of the impact on affordability. The Housing Industry Association’s position is that they did their own analysis of the impact of the bill and the regulations and codes of practice on housing affordability in South Australia. Their estimate was that it would increase costs in South Australia by $20,690 for a single storey dwelling and $29,335 for a double storey dwelling in South Australia.
They then went to a nationally and internationally reputable firm of quantity surveyors, Rider Levett Bucknall. I am sure the minister and the state government will not criticise Rider Levett Bucknall because they have used Rider Levett Bucknall to do their cost estimates on any number of projects in South Australia, most recently on the Adelaide Oval project. I have seen some free and easy criticism by the minister and the government about the consultants’ work in relation to these issues. The minister needs to bear in mind that he and his government have commissioned these international quantity surveyors on any number of occasions and proudly used their cost estimates to justify their case on projects such as Adelaide Oval and others.
The international quantity surveyors Rider Levett Bucknall have confirmed the estimates of the HIA in a report to the HIA, with their own estimates being slightly different—that is, an increase to the cost of a single storey dwelling of $20,088 and an increase in cost of a double storey dwelling of $28,450. For all intents and purposes, they are virtually the same. I seek leave to conclude my remarks.
Leave granted; debate adjourned.
[Sitting suspended from 12:58 to 14:18]
WORK HEALTH AND SAFETY BILL
Adjourned debate on second reading (resumed on motion).
The Hon. R.I. LUCAS (16:21): I am sure members will recall that I was speaking prior to the lunch break and now, refreshed and invigorated, I can continue. Just prior to the break I quoted the figures from the HIA and Rider Levett Bucknall. I was addressing the issue of the impact on affordability and I pointed out that Rider Levett Bucknall had been used by this government to do the Adelaide Oval costings, etc. and they had come up with these costings, together with the HIA, with the impact on affordability from somewhere between $20,000 and $30,000 for single-storey to double-storey dwellings.
At the same time the government has basically been attacking the HIA and the consultants that it has used on a number of occasions, in essence saying that what they have claimed is garbage and that it is part of a scare campaign. Here are just a couple of examples of what the minister, Mr Wortley, has said on radio. On 27 September last year he said:
The reality is they are saying on your program the cost is $22,000 or so for the building of a house. What we’re saying is it’s insignificant.
They are a making a lot of statements on radio and publicly which, to me, do not carry any weight at all. So, the minister is there saying ‘insignificant’. Then in The Advertiser a bit later, on 1 October, minister Wortley is quoted as saying:
Let’s look at the ramifications for those businesses which are operating within our borders. If you are complying with the current act and regulations then by and large you will be under the new system as well and compliance costs will be minimal.
So it is marginally above insignificant but nevertheless it is down at the bottom end of the continuum. Further to that (still on the SafeWork SA website, I am told, as of today) is a questions and answers guide. The question is simply, ‘Will it cost more to build houses under this new legislation?’ The answer from the government and SafeWork SA is no; full-stop.
I accept that when consultants are employed in relation to the national regulatory impact statement and others it does depend, to a large degree, on the assumptions that they make. I accept that, but I do not know anybody who believes the government’s position in relation to this—and SafeWork SA’s and others—that there will not be one extra dollar in extra costs as a result of the bill: 500 pages of regulations and thousands of pages of codes of practice.
The Hon. Mr Wortley, the government and the advocates want us to believe what SafeWork SA has put on its website on behalf of the minister: ‘Will it cost more to build houses under this new legislation? No.’ Not that it is minimal or it is insignificant or it is only a small amount or it is worth it for the benefit for worker safety—none of that. It is just no; it will not cost a dollar or dollars more in relation to the new package. As I said, I do not know of anyone who believes that. I certainly do not believe it and the challenge for the minister when he replies in this chamber is to back up that extraordinary claim that he is making.
There can be argument as to whether or not the increase will be $20,000 or $30,000, or some significant number in between; I accept that. It depends on the assumptions that the consultant has made, particularly in relation, for example, to the degree of fencing that is going to be required or the work safety statements that might have to be undertaken. You can certainly read the regulations and the codes of practice and others to require those in virtually every circumstance, and that is what would have been, I am sure, included in the costings.
There is no doubt that there is going to be significantly more paperwork and more requirements, and therefore significantly more costs in relation to the implementation of this package. For the minister in a bold-faced way, together with his advocates, to say, ‘It ain’t gonna cost a dollar more’, does him, the government and those who support the bill no good at all. It does not do them any good at all to be making those particular claims.
I just want to look at one particular area, although there is a second area I could look at, which is fencing. As an example of the changed requirements, scaffolding is one of the issues that has been debated on talkback radio and elsewhere. The Hon. Mr Darley put some very good questions to the minister on FIVEaa one morning in relation to requirements on scaffolding. I am not aware that the minister has answered those questions and certainly would be interested to see the answers to the questions. They were simple questions such as: will the tradespeople who work on insulation in your roof, put solar panels on your roof—this is a normal standard suburban house, we are not talking about major buildings or anything—put a satellite dish on top of your roof, clean out your gutters, or do retiling on your roof be required to have the additional costs of scaffolding in terms of the work that they undertake?
I am not aware of the minister’s answer to that. I think this chamber deserves an answer in relation to that, because certainly tradespeople are already saying that, if that is required for those sorts of standard tasks that many of us have implemented in our homes, the additional cost can be $5,000 or $6,000 for each particular job that might have to be done. For example, painting would be another one—potentially up to an extra $5,000 or $6,000 just for the scaffolding that is involved in some of those cases.
In relation to the scaffolding issue, I have sought advice on this from the HIA, the MBA and others. This is the advice that I have been provided with and I put this on the public record. The minister is wrong where he is claiming there has been no change in scaffolding requirements under these new laws. The minister’s line is that the scaffolding requirements under the new laws are no different to the existing ones.
It is certainly my advice that that claim from the minister is wrong. I think that is in part why the minister claims there is no cost increase, because he is saying these are already existing scaffolding requirements being undertaken by tradespeople and businesses already. On FIVEaa on Monday 26 September Mr Wortley said:
‘Look, currently existing legislation provides that people working at heights of greater than two metres must put controls in place to mitigate the chance of a worker falling from such a height…this requirement will not change under the new legislation nor will it impose greater requirements that don’t already exist.
The Housing Industry Association has advised me that what the minister has said is incorrect; that is, this bill will not enforce greater requirements than already exist. The HIA has advised me that the new two-metre height limit for installing scaffolding is much more prescriptive than present guidelines and the proposed regulations require a risk assessment to be conducted for working at any height. There is no cut-off of two metres but before you work at any height—one metre, two metres, three metres, or above—you have to do a risk assessment and fill out a form.
What I have been advised is that, whilst there is no specified height limit in the existing regulations, the current industry practice is that scaffolding is only installed for work above three metres. Given that this three-metre limit is the usual industry practice, it is clear that SafeWork SA has accepted this practice as consistent with the existing regulations. In fact, the HIA has advised me that it is not aware of any prosecutions that have occurred in South Australia for people working at heights of less than three metres on a standard building project.
The evidence from the HIA and other industry groups clearly demonstrates that it is impossible for cost increases to be insignificant or minimal, as Mr Wortley claims. This is true in a number of other areas as well. So the essential evidence from the HIA—and it is for the minister to respond—is that when the minister said and continues to say publicly that current existing legislation providing that people working at heights greater than two metres must put controls in place to mitigate the chances of a worker falling from such a height will not change, that is not correct.
The HIA is saying that is not correct. It is saying that the current industry practice, in essence sanctioned or approved by SafeWork SA because they work with the NBA and the HIA, is that scaffolding is generally used in the industry at levels of three metres and above. If you are going to implement this at two metres and if, at any height, you have to do an assessment—a risk assessment has to be conducted at any height—then clearly they are additional costs for a lot of standard tasks that are undertaken on each and every one of our homes at any particular time of the year.
That must be an additional cost. A tradesperson who has to install additional scaffolding and do additional risk assessments does that at a cost, and the tradesperson cannot absorb that cost himself or herself; it has to be met by the client, who is the home-owner. So costs will have to increase in relation to many of those areas. I have only highlighted the issue of scaffolding. You can look at dozens of other areas, but I have enough to cover in this contribution without going through all those.
I highlight scaffolding as proof positive, from the industry viewpoint and others, that it is just impossible to believe the minister’s claim that none of these are additional imposts or new requirements; they all exist at the moment and there is no cost increase at all as a result of this particular package. That is the government’s position, and if it wants this bill to be passed by this chamber it will need to somehow sustain that argument and provide evidence to the chamber that it is indeed the case.
I certainly do not believe it, the industry certainly does not believe it, and I suspect the government would be hard pressed to find anyone who would support that particular contention, other than their own bureaucrats within SafeWork SA. Obviously there are significant changes in this bill. Two of the more controversial ones, which have occupied the minds of lawyers—at great expense to everyone, I suspect—I want to address in relation to legal opinions, because they are important.
One is that this new bill introduces the completely new concept in work safety legislation of a PCBU, a person controlling a business or undertaking. Under our current legislation there is no such concept as a PCBU, thankfully. We talk about businesses and we talk about employers and we talk about employees, but for some reason the bureaucrats and the ministers have agreed to introduce this completely new concept, which is currently untested in the law, as to what is a person conducting a business or an undertaking.
Clearly it is now to cover a variety of organisations and others that are not traditionally considered as businesses. For example, it covers anyone who is engaging in any undertaking, and an undertaking can be anything. Volunteer associations are an undertaking, a football club is an undertaking. If you can think of anything that is, in essence, a task or an activity then it is highly probable that it will come within the definition of an undertaking and potentially under the purview of this legislation.
That is one of the more significant changes that has been implemented in the legislation. I want to refer to one of the pieces of legal advice, dated 22 December 2011, from prominent QC Dick Whitington, who was employed by lawyers working for the Housing Industry Association. Mr Whitington’s legal opinion makes this point quite explicit. He says:
The 2011 Bill indisputably alters radically the nature and scope of industrial health and safety duties applying to employers and others in South Australia…The 2011 bill contains no comprehensive definition of a ‘person conducting a business or undertaking’. Instead, there is a provision in s 5 which merely operates to confirm certain aspects of the reach of the provision without actually explaining what is meant by the expression and, in particular, without explaining what is meant by ‘conducting’, ‘business’ or ‘undertaking’.
The expression ‘business’ is one with a reasonably well-established meaning in law. The expression ‘undertaking’ is not so clear. The relevant meaning given in the Macquarie Dictionary is of a ‘task’ or ‘enterprise’. Plainly, the expression is wide enough to cover such things as home renovations and possibly even a single task of work in a residence (eg, changing a light bulb) (and this appears to be confirmed by the terms of s 20). In this context, the word ‘conducting’ may not be a limiting expression.
I repeat that Dick Whitington QC is saying that this definition of ‘undertaking’ could include something as wide as home renovations or a single task, such as changing a light bulb in your home. This could come within the definition of ‘person conducting a business or an undertaking’ and potentially come within the purview of duties in terms of worker safety and health and safety of others in the workplace. I will continue with Dick Whitington’s opinion:
Hence, the basal criterion or pre-condition of liability informing the primary duty of care is no longer a relationship of employer and employee and instead is one of general (circumstantial) proximity between a person carrying on some business or undertaking and a person exposed to risks to health or safety ultimately as a result of that business or undertaking. Further, there is no requirement that the PCBU shall actually have created the relevant risk which resulted in injury or possible injury nor that they have any control over the risk.
I repeat that what Whitington is saying is that you have this indeterminate PCBU and that there is no requirement that the PCBU shall actually have created the risk or have any actual control over the risk. You could still potentially be held responsible. Dick Whitington goes on:
In practice, in many cases the duty will be derivative in the sense that the PCBU will not be responsible for controlling the relevant risk to health and safety although they will have engaged the person who has created the risk in connection with the PCBU’s business or undertaking.
That is the first of the two significant legal points from Whitington I wanted to put on the public record, and that is the indeterminate nature of what is a PCBU and the requirements that spring from that. I now want to turn to the second one, which has been even more controversial, which is the notion of control. This has applied considerable amounts of my time and lawyers’ time in terms of seeking to come to a resolution on this particular issue.
I want to place on the record, firstly, Dick Whitington’s advice on this particular issue. There are two pieces of advice from Dick Whitington. There is one dated 18 October 2011. He refers to section 4(2) of the existing act, which is the control provision within the existing legislation. The essential argument in relation to this, in layperson’s terms—as I am not a lawyer either—is that under the existing act there is a notion of control. If you control something you can be prosecuted for it.
The main argument is that, under the new bill, that control element or test has disappeared completely. That is, there might be events that you do not control and you still might be prosecuted and held responsible for that. So, in non-legal terms—and as most of us are non-lawyers—that is essentially the argument. This is now the legal argument from Dick Whitington to back that up. Dick Whitington argues that section 4(2) of the current act, which is the control test in the current act:
…is not merely a definitional provision expanding the scope of the class of employees to include independent contractors engaged by an employer/principal and their employees or sub-contractors, it is also a substantive provision restricting the duty which is consequentially attracted to the employer/principal in respect of such deemed employees so that it covers only ‘matters over which the principal has control or would have control but for some agreement to the contrary etc.’
Further on in that opinion, he says:
However, the restrictive duty criterion of ‘control over matters’ has been held to require actual control, referring to things which the deemed employer is managing or organising…
He quotes a case, Complete Scaffolding Services Pty Ltd v. Adelaide Brighton Cement Ltd  SASC 199 :
The Western Australian counterpart to section 19 of the [Occupational Health, Safety and Welfare] Act is s. 19 of the Occupational Safety and Health Act 1984. Section 19(4) contains a counterpart to s. 4(2) of the [Occupational Health, Safety and Welfare] Act and provides that where a principal engages another person (called the ‘contractor’) to carry out work for the principal, ‘the principal is deemed, in relation to matters over which he has control…to be the employer of the contractor…and any person employed or engaged by the contractor to carry out or to assist in carrying out the work’ and those persons other than the principal are deemed in relation to such matters to be employees of the principal. The Western Australian Court of Appeal has held that s. 19(4) requires actual control (including the right of actual control, whether exercised or not) over the particular matter affecting safety. It has been held that the section is not intended to impose upon a principal who has engaged a specialist contractor a general obligation to supervise the manner in which the contractor goes about the performance of the work entrusted to it. The Court of Appeal has held:
‘A construction that imposed such a far-reaching obligation on a principal would produce unworkable consequences. There is no real scope for a principal (lacking the requisite expertise) to exercise actual control over the detailed manner of performance of work by a specialist subcontractor. If it endeavoured to do so, this would be more likely to lead to hazards than to avoid them.
As to the suggestion that the principal should be required in such a case to engage an expert to oversee the method of work adopted by the expert subcontractor, the Western Australian Court of Appeal observed:
‘That solution seems to us to be unworkable. A builder, (for example) would have to ‘double up’, at significant cost, on contractors having special expertise. Work performed by a plumber or an electrician would have to be overseen by another plumber or electrician (whose manner of supervision of the work of the first plumber or electrician would, on this construction, also be subject to the control of the builder).
Again in nonlegal terms, what Dick Whitington is saying in that, based on both the South Australian law and the Western Australian law and on a Western Australian Court of Appeal case, is, essentially, if you are an employer or a business and you have employed a specialist contractor like an electrician who you are relying on to undertake the particular work, the suggestion is that, okay; you have a responsibility. Even though you are not the specialist and you might not know anything about electrical matters, you are the one who is in control of that and, if you have got any doubt about knowledge of electrical matters, you should actually employ another specialist electrician to oversight the work of the electrician to satisfy yourself that you have managed the risk appropriately.
The Western Australian Court of Appeal, according to Dick Whitington, is saying that is just nonsense. It would increase costs considerably and it still would not satisfactorily resolve the situation anyway. That, in nonlegal terms, is what Dick Whitington is saying to us in relation to this notion. You are employing experts—electricians and others—with expertise in the particular areas. As a general employer or businessman or as a principal of that particular business, you are relying on the expertise of that specialist electrician out on that work site to manage the risk—and work within a general program, of course—as it relates to matters of the work of the electrician.
Under the existing legislation, you are not expected to employ another specialist electrician to provide you with oversight of the work that that electrician is doing on that particular worksite. That is the advice from Dick Whitington on 18 October. He follows that up with his advice of 22 December, and I place that on the record as well. He says:
I advised in my advice of 19 October 2011 that the 2011 bill did not contain a provision such as s4(2) of the Occupational Health, Safety and Welfare Act..which not only deemed a principal the employer of a contractor or subcontractor and their employees but also confined the duty of the principal to matters over which the principal had control or would have control but for some agreement to the contrary between the principal and the contractor. I noted that the concept of ‘control’ in this provision had been held to require actual control over the matters giving rise to the relevant risk to health and safety, and that it was consistent with accepted commercial and industrial practice to acknowledge that there was no real scope for a principal to exercise actual control over the manner of performance of work by a specialised contractor. In other words, the cases in this area have effectively drawn a distinction between control over what is to be done and control over how it is done. It is the latter which has customarily been regarded as the proper basis for liability for the existence of a risk to health and safety.
This approach is also consistent with that adopted in the seminal 1972 report of Lord Robens into Safety and Health at Work.
I also advised in my advice of 19 October 2011 that the duties enacted by the 2011 bill might be realigned with that basal principal by an overriding provision generally to the effect that a person who does not have actual control of a particular safety risk does not have a responsibility for eliminating or reducing that risk so far as reasonably practicable.
His legal advice goes on for pages and pages, but they are the essential elements of the advice on that critical issue of control.
In essence, what he saying is that there is a provision in the existing bill—section 4(2)—which is an issue in relation to control; that is, you are responsible for and prosecuted for issues over which you have control. This bill does not have that. The way to actually sort out one of the issues in this bill is to provide for a control provision.
He says that this control provision, which exists in our current act and in the Western Australian act but which is not in the bill, is consistent with what he says is the seminal work on occupational health and safety going back to 1972, and it has governed occupational health and safety legislation in this country since that time (for nearly 40 years) in virtually all of our jurisdictions. That is, that you are responsible for and prosecuted for issues over which you have control. It seems a common sense issue but, for whatever reason, all of these governments, all of these bureaucrats and all of these others have thrown out decades of history in this particular area and they are seeking to impose their own view of the world.
The lawyers, having worked from that advice in relation to the proposed bill, raised a number of scenarios. I only want to put two on the public record, but there are literally dozens that they have produced to highlight the significance and the reach of this legislation now as a result some of these changes. These scenarios are provided by lawyers representing the HIA. The first scenario is:
Mrs Jones owns an investment property that she rents out to a tenant. She does not employ anyone, however, she contracts the maintenance of the house to a maintenance company that specialises in residential tenancies.
What is the impact of these new laws on that particular circumstance, familiar to many of us in this chamber, I am sure? Under the current Occupational Health, Safety and Welfare Act, Mrs Jones, who has this investment property, is not an employer and her investment property is not a workplace. So, she is not an employer and therefore not covered under the provisions of the current legislation. However, under the new laws, Mrs Jones is a PCBU. She is a person conducting a business or an undertaking. The undertaking is owning an investment property. She has a tenant in her property and she has a maintenance company that maintains the property on her behalf.
As Mrs Jones is now a PCBU under clause 5, she will now have a duty to ensure so far as is reasonably practicable the health and safety of that contractor—or any other—who performs work on her rental property, regardless of whether she has any control over how the contractor performs the work or whether she has any expertise in building maintenance. That is under clause 19. She will be required to provide and maintain safe systems of work for the contractor under clause 19(3)(c). If it is reasonably practicable for her to do so, she will be required to supervise the work done by the contractor and ensure that the work that is done does not place other persons at risk (clause 19(2)).
The point is that Mrs Jones will now have duties which are enforceable under the criminal law to which she will now have to turn her mind and decide what she will need to do to comply. She will have to do that in reference not only to the bill but to the regulations and to any of the applicable codes of practice. There is an argument there about what the potential offences are, and I will not go through those. They are clear.
The second example is an example of Dave, who is a self-employed farmer, aged 50. He works alone on his family’s wheat farm. He usually does all the labouring work himself; however, sometimes he engages his farmer mate, John, who owns a farming property nearby to help him out with spraying his crops. When he is engaged by Dave, John works unsupervised and uses his own crop-sprayer to do the work. John gives Dave a valid invoice for his time that Dave pays. Dave believes that he is hiring John as an independent contractor. What is the impact of this scenario under the proposed bill?
The legal advice is that under the current laws, Dave is not an employer and John is not Dave’s employee. It is an independent contracting arrangement between a farmer and another farmer who is providing crop-spraying activities for him. However, under the new laws, John will be a worker under clause 7 and Dave will be a PCBU under clause 5. It is also possible that John will be a PCBU under clause 5 while he is doing the work for Dave.
Accordingly, as PCBUs, both Dave and John will have a duty to ensure so far as reasonably practicable that John’s health and safety is not put at risk while he is working for Dave. Dave will owe a duty to John because he is a worker and arguably John will owe a duty to himself because he is a PCBU and a worker. These obligations apply regardless of whether Dave is supervising or controlling John’s work and regardless of the fact that John is not Dave’s employee.
The advice goes on to highlight the other requirements. There are many other scenarios that have been painted by the lawyers representing the HIA and others, but I think those two highlight the breadth of the application of these laws. The investment property one is a common example for many; certainly, a self-employed farmer. There are examples here in relation to the wine industry and others like that where, contrary to the claims being made by the minister, there is nothing in this bill which is significantly different to what exists at the moment. If there is an existing obligation under the current act, that will be reflected in the new legislation. That advice, according to all of the legal advice, is just palpable nonsense. It just ain’t so in relation to those particular claims. There are dozens of other examples like that, but I do not have the time today to put them on the record.
The next area I want to touch on is the vexed issue of volunteers. Ralph Bonig from the Law Society is not somebody who can be dismissed, as the minister has done, as a vested interest as he has dismissed many other criticisms. He was quoted on 13 February with a wide range of criticisms of the bill. I want to refer to the bit that relates to volunteers. This is Ralph Bonig from the Law Society. He said that one insidious (his word) consequence of this is the bill’s effect on those volunteer run organisations that conduct a business or undertaking. For instance, a local community club that exists to provide a range of community sporting activities, but is principally financed by takings from its bar and kitchen, will be bound by the law if it engages a contractor to do the cleaning, carry out maintenance or carry out upgrades such as the installation of new lights.
Not only will the club be caught by the law, but the volunteers who comprise the committee that manage the club may attract individual responsibilities and liabilities. That is not the political opposition of the government; that is not industry groups conducting a scare campaign. That is the President of the Law Society highlighting the concerns in relation to volunteers.
What has been the minister’s response to these claims that volunteers are going to be impacted in a different way in this legislation? This is his radio grab from 14 February and there are many others similar to it:
Mr WORTLEY: A volunteer cannot be charged for a breach of the occ health and safety act. They can only be charged if they cause injury or death through reckless or negligent behaviour. Now, if they weren’t charged under the Work Health and Safety Act, there would be some other act they would be charged under if they caused a death under those circumstances.
That is his claim on 14 February. On I think the same date was an interview with Bevan and Abraham on ABC radio as follows:
Any volunteer that has obligations now, there will be no difference with the new workplace health and safety legislation. If you’ve got obligations now, you’ll have obligations under the new act.
So, there is absolutely no difference, according to the minister, and you can only ever be charged if you have caused injury or death through reckless or negligent behaviour. Again, that is just palpable nonsense. The Law Society President has highlighted that, as has all the other legal advice, and the challenge I put to the minister is to come into this chamber and repeat that statement.
It is quite clear that under sections 28 and 29 of the new bill volunteers within clubs can be charged and prosecuted for offences against clauses 28 and 29 of the legislation, and they make no reference to only being limited to causing death or injury through, in the minister’s words, ‘reckless or negligent behaviour’. They clearly include that, but they go much broader than that. There are the general duties, responsibilities and risks that volunteers are exposed to. This government and its advocates have sold a pup to the volunteer sector in South Australia.
With the greatest respect (and I make no criticism, because I’m not a lawyer and most of the people in these volunteer groups are not lawyers), they have been told what the minister has just said on the public record. They have all been told, ‘Don’t listen to the Law Society President, don’t listen to Lucas, don’t listen to the others who are saying there are changes in this legislation—I’m minister Wortley and I know best, and there will be no change. You can only been prosecuted if you cause death or injury through reckless behaviour’, and that is just wrong. It is indefensible.
It cannot be sustained by the minister, yet the minister then runs around and says, ‘Well, Volunteering SA agrees with the legislation and the volunteer groups agree with the legislation.’ If the minister is saying to us and others, ‘There ain’t no change at all; it’s exactly the same and you will only get prosecuted if you are reckless or indifferent and cause death or injury’, then that is a different perspective from the advice that the President of the Law Society and others have highlighted.
Even SafeWork SA and SafeWork Australia’s websites have acknowledged that volunteers can be prosecuted. Their websites, in terms of frequently asked questions, are at least acknowledging that in certain circumstances volunteers can be prosecuted. Advice from Scouts New South Wales has already indicated that, if you don’t follow directives, policies and procedures, you may be fined, that is, prosecuted and potentially fined under the new arrangements.
What has changed is that under the existing legislation there was a responsible officer who had to be nominated and that responsible officer has been removed under the new bill, and I think that a number of volunteer organisations are pleased in relation to that, because they believe the responsible officer has gone. The dilemma for them is that in many cases all volunteers potentially are liable. I have been through with the lawyers some common examples to put on the record.
I looked at the example of a footy club that employs a coach for four or five hours a week. Everyone else in the footy club, country or suburban, is a volunteer. But they happen to employ a coach or a barperson for four hours a week on a Saturday afternoon at the peak period during the footy game. No-one else is employed; everyone else is a volunteer, giving of their time. The legal advice is that that footy club in those circumstances loses the exemption of being a volunteer association, because the definition of volunteer association is if you are 100 per cent volunteers.
If you employ a coach or a barperson for three hours a week and everyone else is a volunteer, you no longer enjoy the exemption of being a volunteer association. There would be hundreds of our sporting clubs who pay for a coach or occasional ground staff, for example, to help with green keeping on the weekend for a bowling club or something like that, but the bulk of the work is being undertaken by all of the volunteers. In those circumstances, under the current act, if a volunteer breaks a leg at your local footy club, none of the volunteers can be prosecuted. Even if you could mount an argument that if it was a business someone should not have left the hole in the middle of the ground or someone should not have left oil on the floor of the kitchen or whatever, in those circumstances, under the current act, a volunteer cannot be prosecuted. A volunteer member cannot be prosecuted if another volunteer injures himself or herself.
However, the legal advice is that, under the proposed bill, in exactly the same circumstances a volunteer could be prosecuted under sections 28 or 29 of the legislation in those circumstances. The local footy club has employed a coach for three hours a week, another volunteer is injured in the workplace—or the business and undertaking (the PCBU)—and breaks a leg. A volunteer, if she or he could be held liable, can be prosecuted for the broken leg in those particular circumstances—not possible under the existing legislation. That is just one of the many examples in terms of the potential impact on volunteers in South Australia. That is contrary to the assurances that minister Wortley and others have been giving on behalf of the government.
In South Australia, as a result of this debate, there has been growing opposition to the bill. Let me acknowledge at the outset that there are, together with the government, a number of groups who have lobbied the opposition (and others I am sure) wanting complete support for the legislation. SA Unions and Voice of Industrial Death have lobbied strongly. A number of other like-minded organisations, whilst they have not lobbied the opposition directly, I am sure share the views of those groups.
I have to say that of all the business and industry groups in South Australia there has only been one which has lobbied both with direct meetings and also through letters of support for the harmonised bill, and that is the Australian Industry Group (AIG). Its position has been quite clear and quite explicit; it has supported it at the national level. I also acknowledge that at the national level a number of organisations or bodies support the harmonised bill. The AIG group, the Business Council of Australia and a number of other national business and industry organisations have continued to support the bill being implemented without any amendments.
In South Australia we have seen that, as more detail of the implications
of the legislation has become apparent, there has been growing concern and growing opposition to the government and its proposed bill. Last year when the bill was being debated in the House of Assembly, our own categorisation of industry lobby groups in South Australia was that the vast bulk of the industry groups were lobbying strongly for significant amendments to the bill. Even though their national bodies were not supporting amendments at all, the vast majority of industry groups in South Australia were lobbying for significant amendments, and if those amendments were not achieved by the Legislative Council, they were supporting defeat of the bill at the third reading. That was the position of many of those industry groups in South Australia, the vast majority. AIG was supporting the bill but the overwhelming majority of the remaining industry groups was supporting a number of the amendments that needed to be made to bring the bill back closer to the existing legislation.
As we now move to February-March 2012 there has been a further significant move in terms of the feedback from industry and business groups. In the last three weeks we went out for another round of consultation with business and industry groups. We circulated at that stage our latest draft of amendments to the bill, which was more comprehensive than we had floated even in the House of Assembly debates late last year.
What we have now established is that there has been a significant increase in the number of business groups actually wanting this bill defeated at the second reading of the legislation. In that I would categorise groups such as the Housing Industry Association, the Master Builders Association, the Independent Contractors of Australia, the South Australian Farmers Federation, the Urban Development Institute and also the Hardware Association of South Australia which are lobbying for the outright defeat of the legislation.
We then still have a significant group who want more and more significant amendments to the bill and if they are unsuccessful to have the bill defeated at the third reading. This group includes Business SA, the Australian Hotels Association, the Motor Trade Association, the Wine Industry Association, the Self Insurers of South Australia, the Australian Meat Industry Council, the National Electrical and Communications Association, and the Association of Independent Schools of South Australia.
The remaining continuing supporting group for the bill is the Australian Industry Group (AIG). It remains in support. All those other industry and business associations are saying either defeat the bill at the second reading and let’s stick with our existing legislation, or move significant amendments to it and if they are unsuccessful defeat the bill at the third reading.
To be fair to those groups supporting amendments, some are only supporting amendments in a smaller number of areas, a number of supporting amendments right across the board in terms of the amendments that we have circulated to business and industry. I believe that the Council of Small Business of Australia is also in that category that I have designated as wanting significant amendments to the bill. As I mentioned earlier, the President of the Law Society has also expressed significant concerns about the bill as well and is clearly supporting amendment in a number of significant areas.
The Liberal Party has moved significant amendments in the House of Assembly and we have been consulting since late last year on a further range of amendments. Given the time today, I only want to refer in particular to two amendments, because they have attracted a lot of contention or publicity, but I will list the areas that our amendments currently cover.
They cover the control test; the right to remain silent; union right of entry; volunteers and volunteer associations; health and safety representatives’ power to appoint advisers; codes of practice; the power of parliament to disallow, and the fact that they must be approved by the advisory council; reductions in penalties, back to approximately the existing levels; a redefinition of the workplace; clarification of the delegation of power; a delay in the commencement date to 1 January 2013; and the power to seize property and workplaces.
That is not a complete list, but it is a list of the range of the major amendments that the Liberal Party has been consulting on in recent weeks with those groups that are supporting changes to the legislation. The first of the only two that I wanted to mention in a little detail is the union right of entry, because, unsurprisingly, I am sure the union-dominated Labor government will seek to defend this, and I want to put on the record the Liberal Party’s position in relation to that.
The amendments that the Liberal Party will be moving if we get to the committee stage will be to remove the insertion of the union right of entry for occupational health and safety grounds. Our argument is driven largely by the figures that I gave earlier to say the existing legislation in South Australia has driven our performance in South Australia to be the best of all the jurisdictions under the current arrangements. That has been without having unions with an automatic right of entry into the worksites. There is certainly an argument there in relation to these things, if it ain’t broken, why fix it? Someone needs to justify what it is that giving automatic union right of entry will do that will assist in relation to these issues.
The point I want to make in this is that our existing laws, and what would continue if the Liberal Party amendments in this area were successful, allow workers to elect their own health and safety representatives. There is nothing that prevents workers in a workplace electing a union representative to represent them if they so wish; there is nothing in the legislation that prevents the workers, when electing their health and safety representatives—who, I am told, have been a very important part of our current law—from electing a union representative to be the health and safety representative if they want. So the unions can be involved if the workers actually want them to be, by way of electing them to be health and safety representatives.
Health and safety representatives have significant powers under the legislation. They can stop workers from working in an unsafe worksite, so they are not figureheads; health and safety representatives have the power to stop workers from having to work in an unsafe worksite if they so choose.
They also have the authority to bring in a properly trained and approved adviser if they wish. That adviser can also be a member of the union if that union member is properly trained in occupational health and safety issues; there are restrictions under the act that provide that if you are going to be an adviser brought in by the health and safety rep you have to have certain qualifications in the area. There is nothing that stops the health and safety representative or a worker on a worksite bringing in a properly trained union adviser if they so wish to assist them in the resolution of a problem at a worksite.
So it is not correct to say that at the moment, under the current law, unions are prevented from being active in the worksite and work safety. If the workers want them they can be elected as the health and safety representative; if the workers want them they can bring them in as their advisers, if they are properly trained.
Why shouldn’t the decision be left to the workers as to whether or not they want the union to come in? Why should it be left to a position where the union can say, even if it does not have a member at the site, ‘Hey, I’ve got an interest in this. I am coming into the worksite in relation to a work safety issue,’—even if they do not want to be a member of the union, even if they do not want to union representative to come in, even if they prefer to handle those particular issues themselves. However, the government and the unions want to impose an automatic right of entry for union bosses and unions.
So what are the issues in relation to that? I have heard the minister and others say that there is nothing wrong with that, that there is no evidence to indicate that unions will use this in any way to further causes other than work safety. Well, I refer members to the royal commission report into the building and construction industry conducted by Commissioner Cole. The Cole royal commission report stated:
Occupational health and safety is often misused by unions as an industrial tool. This trivialises safety, and deflects attention away from real problems…scope for misuse of safety must be reduced and if possible eliminated.
In other evidence to the royal commission it was noted that:
…it is not uncommon for a builder or a subcontractor who is in dispute with the union over an unrelated industrial issue to receive visits from union officials investigating and finding alleged safety breaches. The union official asserts that an immediate risk exists, work ceases while employees sit in the sheds or worse, leave the site.
That is the evidence, they are the conclusions of the Cole Royal Commission into the Building and Construction Industry. There is evidence in other states where this power exists that union bosses use this power not for work safety issues but to leverage power in relation to industrial issues, and in particular to enterprise bargaining issues.
In September last year I highlighted that the Master Builders Association reported to me that they already had union officials in South Australia walking onto sites unannounced, stating words to the effect of ‘We’re just getting you ready for 1 January when we can come in whenever we like.’ The MBA cited a recent example in South Australia where a union stopped work on a large project due to purported safety claims. The MBA said that the claim related to a matter which had been independently certified by an engineer as safe and which had also been independently approved by SafeWork SA. They concluded to me that the number of reports of breaches by union officials of right of entry laws have increased at an alarming rate in the last two months, as they were preparing for what they believed was the inevitable passage of this legislation late last year for commencement on 1 January this year.
The second area that I wanted to raise and highlight in relation to the amendments was the issue of codes of practice. Whilst we agree with some of the industry associations, on this particular area the Liberal Party has not been able to reach agreement with the Housing Industry Association and some others, whose preferred course, if the bill is to be amended, is to remove sections 274 and 275 of the bill completely and remove reference to codes of practice in the legislation.
I put on the public record that we have not agreed with that position from the industry associations. The codes or practice—albeit much fewer in number and not as comprehensive in breadth and length—exist under the current act. There are current provisions in relation to codes of practice, and the Liberal Party has not been prepared to support that particular aspect of the industry view to us, that, if the bill was to pass in an amended form, the codes of practice should be removed from it.
We believe there is an argument under the existing act that there are codes of practice, and for the Liberal Party to support codes of practice was a step too far for us in relation to that issue. What we have foreshadowed are some amendments that would actually reflect the current situation, and that is that a code of practice would have to be, firstly, recommended by the advisory council (which is both employer and employee) to the minister, and that the parliament, as with regulations, would have the power to disallow. If the legislation gets through, there may well be a lot of activity in relation to considering codes of practice.
However, I have given my commitment to the industry that, if that is the circumstance, the Liberal Party is certainly up for it and we will only be prepared to support those codes of practice which can be guaranteed to make sense, to improve or maintain worker safety, but also not to impose significant additional imposts on struggling South Australian families trying to purchase a first home or to undertake maintenance activities on their existing home.
In concluding putting the Liberal Party’s position, I indicate that, as will have been evident, the Liberal Party in South Australia has strongly opposed this bill since April of last year. In a political sense, the Liberal Party in South Australia has led the charge nationally against the legislation. We accept that some industry groups, such as the HIA in South Australia and other groups, have led the charge in a business and industry group sense.
We acknowledge that our position in South Australia—which I indicate, and indicated this week—is that we will now be moving to vote against the second reading of the legislation in the Legislative Council. We acknowledge that that position that we are adopting in South Australia is different from the position that our federal coalition colleagues have ultimately adopted and which I outlined earlier in my contribution today.
We also acknowledge that it is different—and a much stronger position in support of small businesses in South Australia and struggling South Australian families—from the position thus far adopted by the Liberal Party in other state jurisdictions at this stage. At this stage there is no other Liberal Party in the state or territory jurisdictions which is either voting against the legislation or committed to voting against it.
I hasten to say that it is possible that, after the Victorian and Western Australian governments look at their regulatory impact statements, they might adopt a position of either significant amendment or opposition to it. However, at this stage they have not yet committed to that particular position.
My contribution, lengthy as it has been today, has outlined many of the problems. However, I am sure members, who have been lobbied by everyone, will know that I have not really touched the surface on literally hundreds of other problems that various groups have raised in relation to the legislation. As in many cases, the devil is in the detail in relation to this supposed harmonisation.
I think it is easy, as I have highlighted over the last two days, to scream that harmonisation is a good thing. The reality we have highlighted today, I hope, is that just screaming harmonisation and saying it is a good thing does not answer the many questions I have put today and I know other members will put when they make their contributions when we return in a couple of weeks.
We have seen in this bill a perfect example of the problems of a federal takeover or national takeovers, harmonisation and the COAG process, when we have weak ministers, such as the Hon. Mr Wortley and the Hon. Mr Finnigan and others, representing our state’s interest at ministerial councils, when we have bureaucrats who have been driving the process, literally for years, and no-one being prepared at those national fora to actually stand up and ask the difficult questions.
All they are prepared to do is what we have seen minister Wortley do—parrot the lines he has been given and probably make up a few more he was not given, such as, ‘The only volunteers who can be prosecuted are those who have caused death or injury through,’ and I forget the phrase, but I have put on the record anyway the quote Mr Wortley used at that particular time.
He has made those claims, which are just unsustainable. Certainly, if we do get to the committee stage, we will be challenging the minister to justify the statements which I have put on the public record and which he has made during this debate on this legislation—the claims he made about scaffolding, which were clearly wrong; the claims on volunteers, which were clearly wrong.
The problem we have with this legislation is that we are seeing an averaging down in the interests of supposed harmonisation. This state, as I indicated, has had a very good record in terms of worker safety. We have led the nation, according to former minister Bernard Finnigan. The figures indicate that, under our existing legislation.
What we have before us is bad legislation which will have a negative impact on families in South Australia. It will have a negative impact on small businesses in South Australia. It will have a negative impact on struggling South Australians seeking to purchase their first home. For those reasons, the Liberal Party now believes the bill should be defeated at the second reading.