Address to the National Safety Council of Australia, Sydney
It’s good to be in a room of OH&S practitioners because I am assuming that in setting up the event you would have completed a full safety assessment. That’s good for me. Given neck braces weren’t handed out, I assume my task is to keep you awake and alert.
Occupational health and safety is important. It is the difference between a child seeing their mum or dad that evening; literally the difference between life and death or disability.
I’m told as lawmakers, our responsibility is to balance understandable safety concerns with common-sense. I see them as one and the same. It makes good sense to have safe workplaces.
It is good to see that deaths in the workplace are trending down. But at a rate of about 120 per annum we still have about 120 too many.
Nevertheless, we should celebrate the long way we’ve come in ensuring safer workplaces, whilst recognising there is still some way to go.
Harmonisation of Occupational Health and Safety Laws
In 2006, the Coalition started the process of Harmonisation of Occupational Health and Safety Laws across Australia. Sadly, after Labor came into power they let ideology stand in the way of common sense.
Indeed, it became clear in the 2010 Leaders Debate that Labor were seeking to politicise this issue when Julia Gillard said her “proudest achievement” was WHS harmonisation. Indeed we were told by Ms Gillard that public servants were crying in the streets with joy over this achievement. The truth is – it had not been achieved, still hasn’t been achieved and is unlikely to be achieved in the near future.
A number of State Parliaments with Governments of all persuasions have expressed concern with the model laws particularly due to the potential impost on small business. The Victorian Government conducted its own Regulatory Impact Statement which showed the total cost of implementing the laws would be $3.44 billion (over 5 years) with small businesses hit with 78% of the transition costs and 74% of ongoing costs – this on top of the impact of Red Tape and the Carbon Tax already facing our small business people.
Right across Australia, we are hearing similar concerns not just from small businesses but big businesses as well who have indicated they will incur greater costs and an increased red tape burden under the so-called national harmonised laws.
If big businesses with armies of human resources lawyers are finding it difficult to navigate, heaven help small businesses.
The modern principles of OHS safety were first created in the UK in 1972 under the Robens Review. The principles hold that responsibility for safety is allocated according to what is reasonable and practicable to control (emphasis added).
These are the internationally accepted benchmarks embedded in International Labour Organisation Convention 155 to which Australia became a signatory in 2004 under the Howard Government. Article 16 states:
Employers shall be required to ensure that, so far as is reasonably practicable the workplaces, machinery, equipment and process under their control are safe and without risk to health.
The National Review into OHS laws (Report 1 October 2008) stated that there was much dissent in submissions over the inclusion of the word 'control' in Duties of Care. Recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is regrettably implemented in the so-called national harmonised OHS laws. To reject both Robens and the ILO in pursuit of ideology was unwise.
The so-called harmonised laws also introduce a new and untested legal concept of connecting Duties of Care to a "person conducting a business or undertaking".
The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but is a major shift away from known OHS principles in all Australian jurisdictions except NSW. Further, it removes a key element of the ILO OHS Conventions to which Australia is a signatory; and creates a legal 'vacuum' due to unknown application and interpretation of Duties of Care under a new concept.
With the removal of the word 'control', legal uncertainty will occur and will require many years of judicial testing before clarity is achieved.
During the Senate debate I put the following scenario which the Government had to accept.
Property owner A appoints management consultant B to oversee a development. B in due course contracts builder C who in turn subcontracts electrical contractor D whose employee E is electrocuted.
All are potentially responsible because the vital control test has been removed. Further, you can’t contract out of this responsibility. This unrealistic chain doesn’t create a safer workplace for E and simply adds to costs of doing business.
OHS legislation must not just operate with legal clarity. The wording of the Act must give unambiguous signals in clear, lay language to every person involved in workplaces. People understand, in a practical sense, that if they 'control' something (or even share control), that they are responsible. With the word 'control' removed, clarity and focus on personal responsibility for safety is diminished and becomes confused. This works against the objective of achieving safe workplaces.
The legislation’s flaws also includes the removal of the right to silence and protection from self-incrimination.
Further, this legislation is only ‘coat hanger’ legislation. In other words, it's an Act on which hang all these various codes of conduct which become enforceable and are portrayed as being allegedly best practice.
Let me give you just one example that is or hopefully was (emphasis on past tense!) a draft code. It's the draft code on bullying. We have a situation where an employer unintentionally bullies me, I don't consider it to be bullying but another “sensitive” employee has observed this and he actually interprets this behaviour as bullying – albeit it was unintentional and it wasn't taken as bullying but the “sensitive” employee did see it as bullying. He would be entitled to compensation, counselling and all the rest. It really is ludicrous and to overcome this difficult workplace scenario, what is suggested?
Well the draft Code of Practice tells us that you've got to put posters up in the staff common room, and you've got to have a go-to person in your enterprise. That's all very well until I asked the question at Senate Estimates 'how does this work for a plumber with two employees where the job-site is the house they happen to be working on that particular day where they don't have a common room and indeed where the three of them work together all day, every day. How are they going to get time out so that two can talk about the other one's bullying. And what if the go-to person is infact the person who has undertaken the bullying? They agreed to reconsider. What we are seeing in Canberra too often – and, big government, with respect big business and big unions putting together a regulatory framework that has no genuine application for small business. Tying up small business in this way makes it, very difficult for them to comply with the law...
...and if all that isn't bad enough, I'm sure you've read of the recent Federal Court case about the worker injured on her work trip whilst engaging in some vigorous horizontal activity, if you understand my drift. Although she engaged in this activity after hours in her free time and she injured herself in that vigorous activity, she's somehow entitled to workers compensation. Whilst the facts of the case may be appealing to some, I trust Comcare’s appealing of the decision is successful.
Because the Judge said words to the effect that if she was sitting in her hotel room playing cards and got a paper cut she would have been entitled to workers compensation. As a result, premiums go up. As a result, you have another statistic for workers compensation and a workplace injury to show how “bad” Australian workplaces are and how unsafe they are.
And if this is really the law one assumes the employer would have had a right, indeed a duty, to supervise. The mind boggles. Thank goodness the decision is being appealed.
If elected, we would conduct a review of the harmonised Work Health and Safety Laws with an open mind to work with State and Territory Governments with a view to deliver genuine harmonisation without the huge impost on small business and seek to convince the NSW Upper House to reflect on its decision in allowing Unions to still prosecute cases.
Asbestos Management Review
Allow me to turn to the Asbestos Management Review. The Coalition has welcomed the Review. It deals with an issue that has struck the consciousness of many Australians and, regrettably, has struck at many families and individuals in relation to issues of health.
I commend the Australian trade union movement, which has taken a very proactive role in relation to dealing with the issues of the hazards of asbestos, and it would be fair to say that without their active campaigning things may not have progressed as far as they currently have.
The Coalition has carefully considered the recommendations and it is the Coalition's view that the issues raised in the review should be dealt with in a bipartisan manner. That offer remains open.
There is a surprisingly large number of cases of mesothelioma and asbestos related cancer. It can strike 10, 20 or indeed 30 years after exposure. We in Australia have the highest reported per capita incidence of asbestos related disease in the world. Whether that is because we are better at diagnosing it than other countries is not necessarily known. Nevertheless, it is estimated that by 2020 there will be 13,000 cases of mesothelioma, and 40,000 Australians are likely to contract asbestos related cancers. We might see it as an industrial issue but it is also a serious issue for the do-it-yourself home builder who might rip out unidentified sheeting from a shed or house without knowing the materials to which they might actually be exposing themselves. That is an issue that needs to be addressed.
Now that we are fully aware of all the dangers of asbestos and the effects that it has on people exposed to it, it makes good sense for all sides of politics, for unions and employers, to join together to try to overcome the legacy issues that are clearly out there. Those legacy issues will remain with us as a country for another 30 years. More importantly, as a country we should try to ensure that no new cases or new exposures occur. Our import regulators might like to be more vigilant in this regard – especially with motor vehicle imports.
Up until a few weeks ago no-one knew Myer was developing a new Emporium in Melbourne. Now thanks to the CFMEU we all know about it.
The Grocon Dispute has witnessed the deployment of hundreds of police at great expense to taxpayers just so people can get to work. The violent attacks on police and police horses in Melbourne are to be condemned in the strongest terms.
Union bosses might like to reflect on the OH&S issues facing our police force
Make no mistake, the scenes we are saw in Melbourne are as a direct result of the CFMEU being emboldened by the abolition of the Australian Building and Construction Commission.
You might wonder why Labor were so keen to take the tough cop off the beat, thereby allowing violence and thuggery back in as part of the work culture. It’s simple:
While Bill Shorten was in charge of the Australian Workers Union, courtesy of prosecutions by the ABCC, more than a hundred thousand dollars in penalties against his union and its officials were awarded; and
The CFMEU bosses donated $1.7 million to the Australian Labor Party in 2010-11 alone.
As well as abolishing the ABCC, Bill Shorten and Labor – with the backing of the Greens and militant union bosses – changed the laws governing the building and construction sector:
- reducing penalties for breaching the Fair Work (Building Industry) Act from $22,000 to just $6,600 for individuals and from $110,000 to $33,000 for corporations;
- narrowing the circumstances under which industrial action by building industry participants will be considered 'unprotected'; and
- stopping FWBC from prosecuting parties for breaches of the legislation where the parties have settled or discontinued a matter. This is a breach of fundamental aspects of the rule of law. You can basically buy yourself out of a prosecution!
The only way to fix the problem is to restore the ABCC which helped the building and construction industry to increase productivity by 10%, provided an annual economic gain of $6.2 billion dollars per year; reduced inflation by 1.2 per cent, increased GDP by 1.5 per cent, while the number of working days lost annually per 1,000 employees in the construction industry fell from 224 in 2004 to 24 in 2006. At the same time, building costs fell by 20-25% and long project delays were dramatically reduced.
But, one of the other key impacts was the decline in workplace injuries and accidents, and most importantly a decrease in the thuggery, bullying and harassment.
Reading the Open Letter from workers on the Grocon site says it all:
We have no argument with our employer, and do not support the blockades against our workplaces…
We have been unfairly singled out for abuse, threats and intimidation by the very organisation we pay our Union fees to, in an argument which is not of our doing.
We only ask that we be allowed the same basic rights our Union leadership enjoy, to be free to access our places of work without the lies, threats and abuse, and without fear of reprisals.
If elected, it would be one of the first acts of a Coalition Government to restore the ABCC with all of its former powers. Australians have the right to go to work without a police escort and without the fear of a union boss threatening violence or intimidation. Families shouldn’t have to live with the worry of their bread winner being attacked and victimized by Union thugs when they go to work.
As well as the abolition of the ABCC, the union bosses have been emboldened by the Fair Work Act and some aspects of the Review seek to provide them with even more power.
The Coalition believes that reasonable right of entry rules should apply but not just so the union bosses can run rampant. It should be seen as a privilege that requires special treatment, not something to be bargained with as a threat and disruption to workplaces.
Right of Entry should not be used as a Trojan Horse to unleash thuggery and violence on construction sites.
Indeed, just last week I received a letter from an employer who said:
10 or more organisers arrived and demanded entry to the site to allegedly investigate safety breaches.
This pack of officials was requested by the Site Manager to stay together and be accompanied around the site, as none of them had been inducted onto the site and most were unfamiliar with the site layout. These officials proceeded to ignore the Site Manager and split up into several splinter groups before proceeding wherever they wanted to on site. After one hour three officials left the site.
…This stunt has nothing to do with improving safety in the construction industry and has everything to do with flexing muscle and trying to intimidate construction companies and clients alike. It’s time for it to stop.
Using OH&S as a ruse for other industrial or indeed political agendas demeans the currency, respect and importance of safety at the workplace.
This in turn leads to less safe workplaces, which in turn prejudices worker safety.
Some union bosses might like to reflect.
As for the Coalition – for us, safety at the workplace is serious business – business which deserves to be treated with respect.
And that is why I salute your endeavours; wish you ongoing success and commit a future Coalition Government to working cooperatively with the National Safety Council of Australia.