Bills Digest No. 18, 2005–06
Occupational Health and Safety (Commonwealth Employment)
Amendment Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Occupational
Health and Safety (Commonwealth Employment) Amendment
Bill 2005
Date Introduced: 23 June 2005
House: House of Representatives
Portfolio: Employment and Workplace
Relations
Commencement: The
substantive provisions of the Occupational Health and Safety
(Commonwealth Employment) Amendment Bill 2005 will commence with
Royal Assent. The amending provisions contained in Schedule 1 will
take effect on a day or days to be proclaimed, however should they
not commence by proclamation within the period of 6 months
beginning on the day on which this Act receives the Royal Assent,
they commence on the first day after the end of that period. The
provisions in Schedule 2 will commence 28 days after the receipt of
Royal Assent.
The Occupational
Health and Safety (Commonwealth Employment) Amendment Bill 2005 (
the Bill ) proposes changes to the Occupational Health and
Safety (Commonwealth Employment) Act 1991 ( the OHS Act ) with
a view to modifying:
-
the role of unions in relation to occupational health and safety
arrangements in Commonwealth workplaces
-
the powers of Comcare
-
the powers of Health and Safety representatives, and
-
the annual reporting requirements of Commonwealth employers.
Backgr ound legislative history of the proposed
changes
This is the third attempt by the federal Government to introduce
the proposed changes contained in this Bill.
The first attempt, introduced as the Occupational Health and
Safety (Commonwealth Employment) Bill 2000 ( the OHS Bill 2000 ),
lapsed with the prorogation of the Parliament for the 2001
elections. The second attempt, the Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002 ( the OHS Bill 2002 ), introduced in June
2002, became law on receiving Royal Assent in 2004. However, the
Occupational Health and Safety (Commonwealth Employment)
Amendment (Employee Involvement and Compliance) Act 2004 ( OHS
Amendment Act 2004 ) had been significantly watered down as a
result of the parliamentary process. In particular, the OHS
Amendment Act 2004 lost all the items which proposed changes to
union involvement in occupational health and safety arrangements in
Commonwealth workplaces.
To obtain a comprehensive overview of the changes proposed in
the Government s previous attempts referred to above, readers of
this Bills Digest are referred to the following additional
material, which also includes reactions in the media and of
interest groups to the previously proposed changes:
-
Nathan Hancock, Occupational Health and Safety (Commonwealth
Employment) Bill 2000 , Bills
Digest, No. 112, Department of the Parliamentary Library,
Canberra, 2000-1
-
Jennifer Norberry, Occupational Health and Safety (Commonwealth
Employment) Amendment (Employee Involvement and Compliance) Bill
2002 , Bills
Digest, No. 137, Department of the Parliamentary Library,
Canberra, 2002-3
-
Senate Employment, Workplace Relations, Small Business and
Education Legislation Committee,
Consideration of Provisions, Occupational Health and
Safety (Commonwealth Employment) Bill 2000, Safety, Rehabilitation
and Compensation and other Legislation Amendment Bill 2000, May
2001.
The amendments proposed in this Part of the Bill are modelled
after the proposed amendments which were unsuccessfully brought
before Parliament as part of the OHS Bill 2002. These provisions
have been discussed in detail in the respective Bills Digests
referred to above. However, when compared to the provisions
contained in the OHS Bill 2002, some of the provisions proposed in
this Bill have been modified. Apart from some editorial
modifications, three changes warrant mentioning. These include:
Several of the proposed provisions in his Bill, whilst otherwise
identical with the provisions as proposed previously, now stipulate
in-writing requirements. For example, item 9,
proposed new paragraph 16(2)(d)
now provides that the health and safety management arrangements
which are to be developed by the employer in consultation with the
employees must be in writing.
Where the proposed provisions contain in-writing requirements,
the Bill also provides that these written instruments will
not be legislative instruments for the purpose of the
Legislative Instruments Act 2003 ( the LIA ). As a
consequence, these written instruments become effective without
having to be registered with the Federal Register of Legislative
Instruments, as maintained by the Department of the Attorney
General, and will not be subject to parliamentary scrutiny and the
disallowance procedure.
The proposed new legislative regime aims at increasing
consultation between employers and employees. However, there may be
situations where employees consider it preferable to remain
anonymous and the Bill accounts for this situation. Like its
predecessor contained in the OHS Bill 2002, proposed new
section 16B enables a representative to represent
employees during consultations with the employer without revealing
their identity. To obtain such a certificate, the representative
must apply to Chief Executive Officer of Comcare ( the Officer ).
Proposed new subsection 16B(1) provides this
officer with the discretion to issue such a certificate. However,
before the Officer may issue the certificate, the employees chosen
representative will be required to satisfy the Officer that
two cumulative requirements are fulfilled. These requirements
include that:
the employee s representative has been asked by
the employee to represent the employee in the consultations
(proposed new paragraph 16B(1)(a)), and
-
the employee has requested his or her identity to remain
confidential (proposed new paragraph
16B(1)(b)).
-
In contrast, section 16B as previously proposed as part of OHS
Bill 2002, merely stipulated that that the Officer may issue such a
certificate if he or she considers that the representative
had been asked to represent the employee.
-
When compared with the previous version, the proposed new
provision is more stringent, because it:
-
contains the additional requirement that the employee s
representative has to satisfy the Officer that the employee
requested that their identity to be protected, and
-
stipulates a higher threshold before the certificate may be
issued under the proposed law, the Officer must be satisfied
that the requirements are fulfilled. When compared to the previous
threshold, the new provision appears to require a higher level of
persuasion or certainty before the Officer may issue the
certificate.(1)
The effects of this increased threshold on the rate of employee
representation remain to be seen, yet it seems to be arguable that
the Officer s decision not to suppress a requesting employee s
identity may inhibit employees request for representation.
Interestingly, the proposed legislation is anxious to stress that
the certification process is not designed to prevent representation
per se. Proposed new subsection 16B(10)
emphasises expressly that the refusal to issue a certificate does
not imply the denial of the right to be represented in the
consultation. However, from a legal point of view this
clarification seems to be necessary because proposed new
paragraph 16A(2)(b) already stipulates expressly that
employees may utilise the services of a representative.
Item 35 proposes to repeal existing subsection
47(7) of the OHS Act. This subsection is part of the regime set out
in section 47 of the OHS Act under which workplace health and
safety inspectors can issue improvement notices to persons who, in
the opinion of the inspector, are currently breaching provisions of
the OHS Act or regulations, have breached those provisions in the
past, or are likely to breach them in future. For the purpose of
this section, the recipients of an improvement notice are called a
responsible person .
Under subsection 47(6) of the OHS Act, responsible persons must
ensure that the improvement notice is complied with. If a
responsible person fails to ensure compliance, he or she may be
liable to criminal prosecution or civil action under Schedule 2 of
the OHS Act.
Under section 47 of the OHS Act, the scope of responsible
persons who may be liable to criminal prosecution or civil action
is currently limited by the operation of subsection 47(7). In
essence, this subsection carves out those responsible persons who
are either:
-
employees of employers other than government business
enterprises, or
-
employers other than government business enterprises.
The limitation contained in section 47(7), however, is at odds
with the provision contained in section 11 of the OHS Act as
amended by virtue of item 17 of the Occupational Health and
Safety (Commonwealth Employment) Amendment (Employee Involvement
and Compliance) Act 2004. This recent amendment was introduced
to subject the Commonwealth and Commonwealth authorities to the new
civil proceedings and criminal prosecution regime for breaches as
contained in Schedule 2 of the OHS Act (the punishment regime). The
Explanatory Memorandum to the Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002 stated that, as a result of the (then)
proposed amendments:
Commonwealth employers will, however, be liable to
proceedings for a declaration of contravention by a court and to
pay a pecuniary penalty pursuant to an order of the court. The
Commonwealth and Commonwealth authorities will also be liable to
the other new civil orders concerning enforceable undertakings,
remedial orders and injunctions. [ ] The amendments will also
provide that Commonwealth employees will not have immunity against
prosecution and will, therefore, be subject to all the enforcement
mechanisms under the Act. Government business enterprises and their
employees will continue to be subject to all the enforcement
mechanisms under the Act.(2)
The proposed repeal of subsection 47(7) of the OHS Act will
remove the limitation on subsection 47(6), aligning the subsection
s scope with the intended coverage of the OHS Act s punishment
regime.
Under proposed substituted section 16(2)(d), employers will be
required to develop written health and safety management
arrangements. Acknowledging that the development of such
arrangements may require some time, item 57 of
Part 2 of the Bill proposes to provide employers
with a period of grace of 18 months in which the employer is deemed
not to have breached the duty of care set forth in subsection 16(1)
of the OHS Act.
In addition, the proposed clauses in this part will save
currently applicable OHS policies (item 58 of Division 1,
Part 2) and agreements between employers and the unions
(item 59 of Division 1, Part 2). Division 2
of Part 2 proposes transitional provisions for the amendments
suggested in relation to designated workplace groups and the health
and safety representatives.
The Bill proposes amendments to the Employment, Workplace
Relations and Small Business Legislation Amendment (Application of
Criminal Code) Act 2001 (EWRSBL). Items 1 to
3 of Schedule 2 of the Bill
repeal subsection 2(3) as well as the heading and items 89 to 132
of Schedule 1 of the EWRSBL as they became law as part of the
amendments proposed in the OHS Bill 2000. As indicated above, the
OHS Bill 2000 lapsed with the prorogation of Parliament prior to
the 2001 elections, making these provisions, which were based on
the successful enactment of the OHS Bill 2000, obsolete.
As indicated above, the most recent previous attempt by the
Commonwealth Government to pass the amendments proposed in this
Bill met with political resistance.
The proposed changes have been commented upon previously and the
reader is referred to the two Bills Digests and the Senate Report
referred to on page 3 of this Bills Digest. However, the amendments
proposed in this Bill raise other issues. The more stringent
certification process involving an administrative decision maker
and possible reluctance by employees to request representation
without the assurance of anonymity, may prove to be a strong
deterrent for seeking employee representation. As the mechanisms
for employee representation could operate as a deterrent to
representation, Parliament may want to consider when debating this
Bill that:
Further, the authors have emphasised that
there:
is no reliable evidence of the effectiveness of
arrangements to represent worker s interests in OHS in which trade
unions are not involved in a supportive and enabling
capacity.(4)
- the representation of employees can lead to significant
attitudinal changes in the workplace and an increase in OHS
compliance(5)
- unions provide important contributions to OHS support and
training.(6)
At the same time, the authors acknowledge the
changing face of the workforce and appreciate that changes may be
required to the way employees are represented, by themselves and by
the unions.(7)
This issue has also been raised in a recent
publication released by the Technical,
Supervisory and Administrative Division of the AMWU, which
argues that:
There is no evidence either within Australia or
overseas which would lead to a conclusion that excluding unions
from OHS processes at workplace or Department/enterprise level
would improve OHS outcomes.(8)
Endnotes
-
The meaning of satisfied has been discussed in
Blount Inc v Registrar of Trade Marks [1998] 440 FCA (1
May 1998). There, Branson J held that the decision maker must be
persuaded, having given proper consideration to those factors and
circumstances that the Act requires him or her to give
consideration to, that such matter is more probable than not. See
also Rejfeck v McElroy (1965) 112
CLR 517 at 521.
-
Explanatory Memorandum to the Occupational Health and Safety
(Commonwealth Employment) Amendment (Employee Involvement and
Compliance) Bill 2002, p. 4.
-
R. Johnstone, M. Quinlan and D. Walters, Statutory OHS
Workplace Arrangements for the Modern Labour Market, Working
Paper No. 22, National Research Centre for OHS Regulation,
Australian National University, Canberra, January 2004, p. 4.
-
ibid., p. 21.
-
ibid., p. 5.
-
ibid., p. 20.
-
ibid., p. 21.
-
M. Nicolaides, National Secretary, Australian Manufacturing
Workers Union, E-data
sheet, Notice to all Commonwealth Employees, 7 July 2005.
-
Whilst this freedom has not been formally recognised, the High
Court has repeatedly hinted that such an implied freedom may exist
in the Constitution. See, for example, Kruger v The
Commonwealth of Australia (1997) 190 CLR 1, pp. 91,
116 and 142. The issue has been raised again more recently in
Mulholland v Australian Electoral Commission [2004] HCA
41, for example, at paragraphs 113-6.
-
Australia registered ratification of the Freedom of
Association and Protection of the Right to Organise Convention of
1948 on 28 February 1973. It entered into force twelve months
after the registration.
-
Nicolaides, op. cit.
-
Australia registered ratification of the Occupational Safety
and Health Convention of 1981 on 26 March 2004 and of the
Right to Organise and Collective Bargaining Convention of
1949 on 28 February 1973. They entered into force twelve
months after their registration. All ILO Conventions referred to in
this Bills Digest are reproduced on the International Labour
Organisation s webpage at http://www.ilo.org/ilolex/english/convdisp2.htm,
accessed 20 July 2005.
Thomas John
9 August 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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