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senate vote 2011-11-24#6
Edited by
mackay staff
on
2014-01-24 12:24:28
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Title
Bills — Work Health and Safety Bill 2011, Work Health and Safety (Transitional and Consequential Provisions) Bill 2011; in Committee- Bills — Work Health and Safety Bill 2011, Work Health and Safety (Transitional and Consequential Provisions) Bill 2011; In Committee
Description
<p class="speaker">Eric Abetz</p><p>by leave—I move opposition amendments (1) to (4) on sheet 7154 together:</p><p class="italic">(1)   Clause 19, page 23 (line 3), after “undertaking”, insert “who has control over the matter”.</p>- <p><i>That the amendments (Senator Abetz's) be agreed to.</i></p>
- <p>The committee divided. [21:01]</p>
- <p>(The Chairman-Senator Parry)</p>
- <p></p>
- <p></p>
- <p>Question negatived.</p>
- <p>Bills agreed to.</p>
- <p>Bills reported without amendments; report adopted.</p>
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<p class="italic">(2)   Clause 19, page 23 (line 9), after “undertaking”, insert “who has control over the matter”.</p><p class="italic">(3)   Clause 19, page 24 (line 7), after “as”, insert “he or she has control over the premises and it”.</p><p class="italic">(4)   Clause 19, page 24 (line 8), after “practicable”, insert “to do so”.</p><p>The primary duty of care is, from the coalition's point of view, an important issue that needs to be considered. We believe that the modern principles of occupational health and safety were first created in the United Kingdom in 1972 under the Robens review. The principles of that review hold that responsibility for safety is allocated to what is reasonable and practicable to control. That is a very important test, from the coalition's point of view. That is the control test.</p><p>That benchmark of 'reasonable and practicable to control' is in fact also embodied in the International Labour Organisation conventions to which Australia became a signatory in 2004 under the Howard government. ILO Convention 155 states in article 16 that:</p><p class="italic">Employers shall be required to ensure that, so far as is reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.</p><p>We believe that that word 'control' is a very important component of any sensible legislation.</p><p>As I indicated, this had its genesis nearly 40 years ago in the United Kingdom. I understand that there was also a Victorian review after the Robens review in the United Kingdom and that the state of Victoria came to a similar conclusion. The national review into the occupational health and safety laws in its report of 1 October 2008 stated that there was much dissent in submissions over the inclusion of the word 'control' in duties of care and then recommendation 8 called for the removal of the word 'control' from the definition of reasonable and practicable. This is implemented now in the national model OHS laws. It is to be remembered that during this time—I do not want to get into it too much—we did have wall-to-wall Labor governments and it was agreed at that time by all of the Labor governments that that should be the case.</p><p>The coalition cannot understand changing the law to get a new test which is untried. The existing test originated in the United Kingdom some 40 years ago and was put into an International Labour Organisation convention only some seven years ago. The test that had been implemented about 30 years earlier and had attracted the attention of the International Labour Organisation was deemed by that organisation to be a good and proper test. Why we would seek to take out of the Australian law a provision which has been well established for some 40 years is something that I confess the coalition cannot quite understand, other than perhaps because certain pressure was brought to bear on the government—all governments at the time being Labor—courtesy of elements of the trade union leadership.</p><p>The model laws introduce a new and untested legal concept of connecting duties of care to a person conducting a business or undertaking. At a later stage the Parliamentary Secretary for School Education and Workplace Relations might be able to give us some clarity on how that applies to the volunteer sector, as well. The removal of the word 'control' not only creates confusion over who is responsible for what in work safety but also is a major shift away from known occupational health and safety principles in all Australian jurisdictions except New South Wales. Further, it removes a key element of the ILO convention 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. It is reasonable to expect that with the removal of the word 'control' legal uncertainty will occur and many years of judicial testing will be required before clarity is achieved.</p><p>One of the aims of harmonisation was to get a simpler regime—a regime that was clear; that had legal clarity. The coalition believes the wording of the act must give unambiguous signals in clear, lay language to every person involved in workplaces. People must understand in a practical sense that if they control something or even share control 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 safer workplaces. I commend the amendments to the committee.</p> <p class="speaker">Jacinta Collins</p><p>The government opposes both sets of amendments proposed by the opposition in relation to primary duty of care. Consistent with the model act, this bill broadens the duty of care provisions beyond the traditional employer-employee relationship so that all persons who conduct a business or undertaking owe a duty of care to all persons who may be put at risk by the conduct of the business or undertaking. Importantly, this includes workers whose activities in carrying out work are influenced or directed by such persons. The primary duty of care in the bill requires persons conducting a business or undertaking to ensure the health and safety of workers and other persons so far as is reasonably predictable. It is not an absolute requirement—the person conducting the business or undertaking need only do what can be reasonably done in the circumstances to comply with the duty.</p><p>The National Review into Model Occupational Health and Safety Laws recommended, and workplace relations ministers agreed and have maintained such agreement, that control should not be a separate element used to limit the extent of the primary duty of care or be expressly included in the definition of what is reasonably practicable, for two key reasons. Firstly, the inclusion of 'control' in the primary duty of care can result in the focus being on whether or not a duty applies rather than on what needs to be done to ensure the health and safety of workers. In other words, a control test might encourage arrangements to avoid control in order to avoid the duty. Secondly, the case law provides that control is relevant in determining what is reasonably practicable in the circumstances. An inability to control relevant matters must necessarily imply that it is either not possible for duty holders to do anything or not reasonable to expect them to do so.</p><p>This is not to say that the concept of control is not contained in the bill. The bill includes specific duties for persons with management or control of workplaces and persons with management or control of fixtures, fittings or plant at workplaces. Further, the duties in clause 19(4), which the opposition is seeking to amend to include reference to 'control', only apply where the person conducting the business or undertaking has management, or control, of the accommodation. At best amendments (3) and (4) add nothing to the provision as drafted; at worst, they simply confuse the provision. It is on this basis that the government opposes the amendments.</p> <p class="speaker">Eric Abetz</p><p>Can the parliamentary secretary explain to the chamber how the re-establishment of a well-accepted test will lead to confusion? It is a test that was adopted in the United Kingdom 40 years ago and 30 years later, in 2004, it was adopted by the International Labour Organisation. Given that it was all settled, why would maintaining the settled provisions, the settled understanding, lead to confusion? It is, with great respect, the other way around—because we are having new tests imposed on us, there is this legal uncertainty. Whilst you are dealing with the issue, can I also comment that, given the very serious penalties that will be imposed by this legislation, it is a very important consideration to know whether somebody has the control, and therefore, if you like, the duty, before one starts making people liable for what will become very hefty penalties.</p> <p class="speaker">Jacinta Collins</p><p>I will commence with the last part of the senator's question, because I covered that in my earlier comments. The duties in clause 19(4), which the opposition is seeking to amend to include a reference to control, only apply where the person conducting the business undertaking has management or control of the accommodation. I think that point is fairly clear.</p><p>There are perhaps two components to the answer on the other point that Senator Abetz makes. The first is that these provisions reflect, as I stressed, the model act. This is the act that is being introduced in states and territories. I accept his point that when they were first agreed there was a different composition of governments in those states, but the ones that are being delivered in those states are consistent with the measures being included here. On the second component: perhaps I could stress that Senator Abetz obviously takes issue with the recommendations of the national review, which, as I mentioned earlier, the government has accepted in the framing of the current bill.</p> <p class="speaker">Eric Abetz</p><p>I thank the parliamentary secretary for that. What is the difference and how will it be determined, if the clause refers to the person who has the management or control? Clearly, management and control are now being seen as two different things, but both can be responsible. Of course, there are potentially work sites for which somebody has the overall management responsibility but for which a subcontractor has the actual control in a particular circumstance. To say that the manager of that site bears as much responsibility as the subcontractor who is controlling the situation leads, I think, to duplication. It is potentially a hugely unfair burden to place on those who have the management responsibility as opposed to the direct control that one would imagine the subcontractor in my example would have.</p> <p class="speaker">Jacinta Collins</p><p>Let me explain to Senator Abetz what is relatively clear to me through addressing these matters on a case-by-case basis. The bill contemplates that there may indeed be concurrent responsibilities where you may have more than one party responsible to one extent or another. The test of that would then be what was reasonable and/or practicable with respect to the level of management or control associated with the particular party.</p> <p class="speaker">Eric Abetz</p><p>With respect to the parliamentary secretary, that has not been explained in the detail that would satisfy me in this debate. We have a situation where somebody bears the management or control. It stands to reason that, in some circumstances, there may be people who bear responsibility for the management and others who bear the responsibility for control of a situation. In those circumstances, on whom will the duty rest or can you just cherry-pick to determine whom, on a particular occasion, you should pursue? Or should you pursue both and potentially get a double whammy? That is the difficulty that we have with this language.</p> <p class="speaker">Jacinta Collins</p><p>I think I would need to cover ground that I mentioned earlier. The bill envisages that there would be concurrent responsibilities. It is not, in our view, an issue of cherry picking to assess what is reasonable or practicable with respect to management and/or control issues in relation to health and safety incidents.</p> <p class="speaker">Eric Abetz</p><p>I thank the parliamentary secretary for clearing that up, because it means that there is a concurrent responsibility. The manager of the project clearly has a responsibility and will therefore have to incur the extra expense and time to ensure that they look at everything done by the subcontractor, who would actually have the control. We will have two different parties, one in management and one with the actual control. Let us say that you are a project developer and your first task is to dig the foundations. That has to be done in a safe manner. You get in a subcontractor to dig the foundations. The person doing the overall management of the project will therefore basically have to be there supervising the subcontractor, to ensure that they avoid liability under this legislation, in case the subcontractor digging the foundations, who actually has the physical control of the site, does something wrong. In those circumstances, they would have to be there and incur an extra cost. That was never the idea of harmonised legislation. The idea of harmonised legislation was to make it simpler and to increase the productivity of our workforces and our nation. This of course will clearly reduce productivity, because we will have to have supernumeraries double-checking each other to make sure that they escape liability. So this becomes a very bureaucratic and costly exercise.</p> <p class="speaker">Jacinta Collins</p><p>It is the government's view that requiring, as this bill does, that duty holders consult about such matters is important and does not need to be a costly process. Again, though, I stress the point that the duty relevant to duty holders is what is 'reasonably practicable' in the circumstances. But at the other extreme, in the circumstances that Senator Abetz is raising, I am sure that, in his view in dealing with these matters, he accepts that by the same token we do not want provisions that encourage management to outsource responsibilities for the health and safety of their workplaces.</p> <p class="speaker">Eric Abetz</p><p>That of course is going to the bizarre length which is not at all within the parameters of what I was mentioning, because it would be very hard to argue that it was unreasonable or impracticable for the duty holder—in this case, the manager—to have a person there on site, supervising at all times the work of the subcontractor. So in those circumstances that will be an extra cost and a reduction in productivity. The question then is: if the duty holders have to consult with each other, and do consult, are they able to contract out of their obligations in this legislation by asking, or by getting one party to agree, that they will take over the responsibility of both the manager and the controller of a particular site?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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