HANSARD EXTRACT
|
Occupational Health and Safety (Commonwealth Employment )
Amendment (Promoting Safer Workplaces) Bill 2005: Second
Reading |
| 7 & 8 December 2005 |
Mr HAYES
(Werriwa)
(7.26
p.m.)—Once
again we have a bill being debated in this place that seeks to
override a decision of a legally constituted body. But on this
occasion it is not the Australian Industrial Relations Commission,
as we have seen in other legislation introduced in this place. This
time the federal government is seeking to overturn the decision of
another government. But, much like the rest of the legislative
program of this government, it is not a case of stopping at just one
government. The provisions of the
Occupational Health and Safety (Commonwealth
Employment) Amendment (Promoting Safer Workplaces) Bill 2005
act to curtail the operation of the industrial manslaughter laws of
any state or territory into the future. I oppose this bill, both for
what it does and for the premise on which it is based.
The Minister for Employment and Workplace Relations, in his second
reading speech, started out by stating that these amendments:
... will reinforce and underscore the Commonwealth’s regulatory
approach to workplace health and safety, which is to ensure that the
main focus should be on preventing workplace injuries, rather than
punishment after the event.
They are noble sentiments indeed, and I think that you would be hard
pressed to find anybody who did not support the notion that it would
be better to have an approach that supports occupational health and
safety and does not rely solely on prevention through punishment.
But companies have been introducing workplace changes for some
years, and I think there is now a reasonably healthy regime out
there which has been developing.
Whilst the government’s philosophy on this occasion, where it seeks
to focus on injury prevention, may be noble to that extent, I do not
know if it would translate into setting aside law enforcement so
that we focused on crime prevention rather than punishment after the
event. I do not know that the minister would find too many people
who would agree with that approach. However, fundamentally there is
probably little difference between the two in terms of general
philosophy.
People always agree that law enforcement should have its focus on
crime prevention, and it is certainly a guiding philosophy that most
neighbourhood and community groups who are tasked with administering
crime prevention programs would no doubt agree with. However, I do
not know that anyone would go so far as to agree that, if a criminal
act has taken place, the perpetrator should go unpunished just
because the main focus should be on crime prevention. No-one is
willing to let criminals go unpunished, so why should we adopt an
approach to workers’ safety in which negligent employers can go
unpunished? To my way of thinking, that just does not make sense.
The impetus for this bill is the passing by the ACT government of
the Crimes (Industrial Manslaughter) Amendment Act. The act, among
other things, moved industrial manslaughter from occupational health
and safety legislation into the Crimes Act because the standard for
conviction is higher.
Debate interrupted.
8 December 2005
in continuation
Mr HAYES
(Werriwa)
(10.48
a.m.)—Last
night, when I was speaking on the
Occupational Health and Safety (Commonwealth
Employment) Amendment (Promoting Safer Workplaces) Bill 2005,
I indicated that it is a very important point that the standard of
proof for conviction under the legislation of the ACT government is
much higher than for a civil standard. As a consequence, it is
reliant not simply on the balance of probability for a prosecution
but on the criminal standard of being beyond all reasonable doubt.
These laws do not apply directly to Commonwealth employees or
Commonwealth departments. However, they do apply to Commonwealth
government business enterprises such as Telstra—at least, until it
is sold—Australia Post and the Health Insurance Commission. There
are possibly others, but at least I know that it directly applies to
those three. I do not think that a reasonably minded person would
think that this would be a horrendous intrusion into the operation
of those organisations. They are quite large organisations, which I
expect—over the last few years, at least—would have invested quite
considerable sums of money in improving workplace safety with a view
to minimising the impact of injuries in their operations. I find it
difficult, therefore, to believe that these organisations would be
so concerned over the impact of the ACT legislation to the point
where they would be lobbying government to be excluded from these
provisions.
In a nutshell, that is probably the key point: lobbying government
to be excluded from the provisions. For the most part this debate is
not about ACT laws but about the approach of this government when
faced with something it does not like. This bill is not about the
impact it may have on an estimated 1,000 employees of the
Commonwealth government business enterprises that might be affected
by the ACT law; it is about the continuing approach by this
government and yet another demonstration of its preparedness to
legislate when things do not go its own way. What I mean is that
when faced with a decision it does not like the government is more
than willing to simply legislate to overturn it or, in this case,
legislate to exclude itself from it. That is the essence of this
bill and, quite frankly, the essence of this government. In his
doorstop interview on 23 March the Minister for Employment and
Workplace Relations noted:
When the ACT was contemplating this legislation last year we then
said that we objected to it. We thought it was inappropriate and
we’ve simply taken the steps that we can to protect Commonwealth
employees.
He went on to say:
As to broader issues that’s a matter for the people of the ACT.
He has got that part right, at least: it is a matter for the people
of the ACT. That is an important part which really should not be
glossed over.
Australia has had a long history of setting up governments, judicial
systems, tribunals and other bodies to oversee the making of
independent judgments on issues. Since 1989, the ACT has had its own
government, which was established to determine laws and other
governance structures that would apply to the people of the ACT.
That government should be left to do exactly that.
The ACT Legislative Assembly is made up of 17 members who are
elected every three years by the people of the ACT to represent them
and to make decisions and laws on their behalf. That is a
fundamental plank of our system of governance. But now, because the
minister or the Prime Minister or whoever in government has decided
that they do not like one of the laws that this freely elected
government made, the Commonwealth intends to legislate to exclude
itself from its coverage. What arrogance. This government, quite
frankly, is drunk with its own power and believes that simply
because it does not agree with the ACT government it will just
legislate to exclude itself from any decision.
This is not the first time that this has occurred and I am sure that
it will not be the last under this government. The same underlying
philosophy led to legislation that excluded small business from
making redundancy payments. The government on that occasion decided
it did not like the decision of the court and would legislate
against it. It is part of an underlying philosophy that has resulted
in the effective neutering of the Australian Industrial Relations
Commission under the changes that were introduced only yesterday,
which will have a completely deleterious effect on our industrial
relations system. This government did not like the last few
decisions that the Australian Industrial Relations Commission made,
and it has been on record opposing them. So what does it do? It sets
out to neuter the existing system and establish another tribunal,
the Fair Pay Commission, in the hope that it might have more
influence over its decisions in the future that it did over the
independence of the Australian Industrial Relations Commission.
If we have a couple of more bills introduced with the same
underlying philosophy, we will have to start referring to this as a
characteristic of this government and not just a trend. At this
stage it has got to be seen as a disturbing trend. It is disturbing
because it is creating yet another two-tiered system in workplace
law, and it is disturbing for the broader context of this
government’s agenda. It is disturbing in light of the government’s
own definition of the new federalism as set out since it took
control of the Senate. One can only wonder which other Australian
institutions that are integrated into our system of checks and
balances the government may have its sights on and what other state
laws it may not like and may decided to legislate to exclude itself
from. What other two-tiered systems are going to be created? In
which other areas is even greater confusion over the coverage of
workers going to be created for employers? I have to wonder if this
bill signals the start of a new role for this government’s
involvement in occupational health and safety issues. Maybe this is
a new area on which the government wishes to focus its energies.
Industrial manslaughter laws have received considerable attention of
late. There is no denying that. They have been the subject of debate
in many state governments, and by unions and business
representatives alike. The position of each group is quite clear. Of
course, we would all prefer a situation where fatalities did not
occur in the workplace. Not only is it traumatic for the colleagues
who remain and who feel they should have done more in an effort to
prevent an accident but it is traumatic for the families of the
victims. That is why there is a need for such laws. I agree that
industrial manslaughter laws should not be put in place simply to
‘go after the boss’ when a fatality occurs. They should not be there
simply for someone to be blamed. However, they need to be there so
that, if there is gross or criminal negligence involved, those
responsible should be punished and punished appropriately.
I am not saying that in every instance people should be punished.
But if something goes wrong and there is negligence, I do not see
that appropriate punishment is unfair. I drew the analogy earlier
with criminal activity. We all believe that, once a crime has been
committed, the perpetrator should be punished. The same should apply
here. While the government hangs its argument against this on the
approach of keeping the focus on preventing workplace injuries, even
the most vigilant workplaces cannot eradicate injuries altogether.
Accidents happen; sometimes accidents happen as a result of
someone’s negligence. In those instances it should not be dismissed
simply as another accident on a work site. I am sure that members
opposite will believe that the union movement is in support of such
legislation and that Labor members are only opposing this bill to
protect their colleagues in the union movement. Let me assure you
that that is not the case.
In 2003 the Canadian government modernised its criminal code with
respect to corporate criminal liability, with the government
adopting changes to ensure that employees could be held liable for
criminally negligent acts or omissions at the workplace. I also
understand that the
UK has also indicated that it will consider ‘corporate killing’
legislation, with the government introducing a bill earlier this
year which would place an obligation on directors to take
responsibility for their company’s health and safety laws. Rather
than simply legislating to exclude itself, the Commonwealth should
accept its responsibility and use its government business
enterprises to lead by example and set new benchmarks in
occupational health and safety. This would be a much better means of
reinforcing its philosophy of prevention rather than punishment.
In the development of any workplace laws, there will always be a
number of competing views and objectives. It would be pretty
ignorant of us to think otherwise. However, there are some necessary
conditions that should be adhered to. The government cannot hide
behind a weak argument that ACT laws move the focus off safe
workplaces and away from focusing on prevention of injuries at the
workplace. The legislation simply does not do that.
It would be naive to think that any worker would be more prepared to
be placed at risk because they feel comforted by the knowledge that
if they were injured or killed their boss could be punished. That
would be absurd. Workers would much prefer it if the risk at the
workplace was minimised by having preventative practices and
infrastructure in place at their workplace. I cannot imagine any
worker believing that punishment substitutes for safety. As I said,
I regard that as simply absurd.
Prevention and punitive measures are not conflicting or mutually
exclusive, and they should never be considered so. Preventative
measures are reinforced by punitive measures. This is an approach
that the government has used as the basis of its welfare reform, so
why is it so affronted by the application of workplace safety laws?
In most other circumstances and policy areas, prevention and
punishment go hand in hand, so I do not see why occupational health
and safety should be any different.
While the minister claims that this bill has been introduced to
remove uncertainty that has arisen in the ACT legislation, this bill
actually adds to it. It adds to the confusion of ACT employers in
determining whether or not they are going to be covered by
industrial manslaughter laws. It adds to the confusion of
governments in other states and territories who, when considering
such legislation, will be uncertain as to how their laws might be
changed or modified without consultation or consent. It adds to the
confusion of businesses who find occupational health and safety
matters confusing at the best of times. It also adds to the
confusion of employers, employees and their families who are
impacted by a death in the workplace.
I oppose the bill because it is the first step down a slippery slope
with the Commonwealth government starting to legislate to exclude
itself from the laws of another sovereign state or territory
government. It is a slippery slope that we start down when the
Commonwealth government feels that it is well within its rights to
intrude into the rights of another government and determine laws
that apply in that state or territory. It is an approach by
government that I believe goes against the basic tenets on which our
system is built. It is wrong in principle and wrong in practice. The
people of the states and territories elect their governments to make
laws to govern them, and that is the way it should remain.
Return
to Speeches Menu.
