Bills Digest no. 23 2008–09
Safe Work Australia Bill 2008
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
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Date introduced:
4 September 2008
House: House of Representatives
Portfolio: Education, Employment and Workplace
Relations
Commencement:
Sections 1 and 3, on the
day of the Royal Assent; all other provisions, on a day to be fixed
by Proclamation but no later than six months after the date of the
Royal Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of
the Bill is to establish Safe Work Australia as an independent
Commonwealth statutory body to improve occupational health and
safety outcomes and workers compensation arrangements in
Australia.
The Australian Safety and Compensation
Council (ASCC) was established by the former Government to
advise on the development of policies relating to occupational
health and safety and workers compensation matters. The ASCC is an
advisory body which represents the interests of governments,
employers and employees.[1]
At the meeting of the
Workplace Relations Ministers Council in Brisbane on 23 May
2008 all of the ministers agreed to replace the ASCC with a body
which will have tripartite government, employer and employee
representation and will be jointly funded by the Commonwealth,
states and territories. That body is Safe Work Australia (SWA)
which is established by this Bill.
Little has been reported about the rationale
for abolishing the ASCC and replacing it with SWA except that it is
part of the Government s commitment to co-operation and
collaboration between the Commonwealth and the States and
Territories in relation to the health and safety of Australian
workers.[2]
On 4 April 2008, the Minister for Employment
and Workplace Relations, the Hon Julia Gillard MP, announced a
national review into model Occupational Health and Safety (OHS)
Laws.[3]
The three person panel is asked to
review OHS legislation in each State, Territory and
Commonwealth jurisdiction for the purpose of making recommendations
on the optimal structure and content of a model OHS Act that is
capable of being adopted in all jurisdictions.
The review will prioritise the division of
liability between employers and employees, the nature of safety
offences and defences to safety breaches. It will make
recommendations to state and federal workplace relations ministers
by October 31. A later report, due by January 30, 2009, will cover
other areas including compliance and education programs,
inspectors' access to worksites and permits for hazardous work. The
reports will form the basis of the model workplace safety laws,
which the Council of Australian Governments has agreed to produce
within five years.[4]
When the report is handed down, SWA will be
responsible for developing national policy relating to OHS and
workers compensation, and preparing model OHS legislation, model
regulations, model codes of practice based on the findings and
recommendations of the review report.
At its meeting of 4 September 2008, the
Selection of Bills Committee resolved not to refer the bill to a
committee for formal inquiry.[5]
The
Intergovernmental Agreement for Regulatory and Operational Reform
in Occupational Health and Safety (the Intergovernmental
Agreement) made between the Commonwealth and all States and
Territories on 3 July 2008 states that the Commonwealth will fund
50 percent of the budget of Safe Work Australia while the States
and Territories, together, will fund the remaining 50 per
cent.[6]
In addition, the Agreement specifies that for
2008-09, SWA will have an initial budget of $17 million, pro-rated
to the date of its establishment and subject to indexation by the
CPI as a minimum each year.[7]
The annual cost to the Commonwealth would,
therefore, be an initial minimum of $8.5 million which would be
subject to indexation by the consumer price index as a minimum in
the following years. The Explanatory Memorandum states that this is
less than the cost to the Commonwealth for the running of the
ASCC.[8]
Part 1 - Preliminary
Part 1 of the Bill contains a general
statement about the purpose and intention of the Act, and relevant
definitions.
Clause 6 sets out in
table-form the proposed functions of SWA including, but not limited
to:
- develop national policy relating to OHS and workers
compensation
- prepare model OHS legislation, model regulations, model codes
of practice and other material relating to OHS
- develop a policy, for approval by the Ministerial Council,
dealing with the compliance and enforcement of the Australian laws
that adopt the approved model OHS legislation
- monitor the adoption of model OHS legislation, model
regulations, model codes of practice by the Commonwealth, States
and Territories
- develop proposals for harmonising workers compensation
arrangements across the Commonwealth, States and Territories and
national workers compensation arrangements for employers with
workers in more than one of those jurisdictions
- advise the Ministerial Council on matters relating to OHS or
workers compensation, and
- such other functions that are conferred on it by any other
Commonwealth Act.[9]
Clause 10 provides that Safe
Work Australia will have 15 members as follows:
- the Chair
- 1 member who represents the Commonwealth
- 8 members, each of whom represents a different State or
Territory
- 2 members who represent the interests of workers
- 2 members who represent the interests of employers and
- the CEO.
Subclause 10(2) provides that
SWA may not perform its functions if more than one third of those
offices are vacant.
Clause 11 provides that the
Minister[10] must
appoint a person to be the Chair in consultation with the
Ministerial Council.[11] That appointment must be in writing.
The Minister must also, by written
instrument:
- appoint the person who will be the Commonwealth representative
on SWA: clause 13
- appoint the persons who will be the State or Territory
representatives, based on nominations from the States and
Territories: clause 14
- appoint the persons who will be the workers representatives,
based on nominations by an authorised body [12] : clause 15 and
- appoint the persons who will be the employers representatives,
based on nominations by an authorised body [13] : clause 16.
However, in the case of both the workers
representative and the employers representative, where the Minister
does not agree to appoint the nominated person, an authorised body
(which may or may not be the same authorised body) may nominate
another person: subclauses 15(3) and 16(3)
respectively.
The Bill does not contain any eligibility
requirements for membership of SWA, for example, that the Minister
should have regard to whether nominees have relevant qualifications
or a background in OHS and workers compensation matters.
Clause 17 provides that
voting members hold office on a part-time basis, for the period
specified in their instrument of appointment which must be no
longer than three years.[14] A voting member is defined in clause 4
to be a member other than the CEO.
Appointments of voting members will end
either:
- by resignation: clause 19 or
- on termination by the Minister for the following reasons:
- misbehaviour[15]
- inability to perform their duties because of physical or mental
incapacity
- bankruptcy (or similar)
- absence, except on leave of absence[16] from three consecutive meeting of SWA
or
- failure, without reasonable excuse, to provide disclosure of
interests as required by clauses 18 and 40: clause
20
In addition the Minister
must terminate the appointment of a
member who represents a State or Territory, workers or employers if
the body which nominated the person requests the Minister to do so
in writing: subclause 20(3).
According to clause 21 the
Chair is to be paid subject to a determination by the Remuneration
Tribunal. However, if there is no such determination, then the
Chair is to be paid the remuneration that is prescribed by
regulations. The Bill is silent about the manner in which the
remuneration would be calculated in these circumstances. However,
regulations are put before the Parliament and are subject to
disallowance.
Clause 25 provides that the
office of a voting member is not a public office within the meaning
of the Remuneration Tribunal Act 1973. Whilst this makes
clear that the Remuneration Tribunal will not set the remuneration
of these members, the Bill is silent as to what the mechanism will
be. However, the Explanatory Memorandum states the representative
members will be remunerated by the governments or bodies which they
represent.[17]
Clauses 27 and 28 are about
SWA s strategic plan. Clause 27 requires SWA to
prepare draft strategic plans once every three years for the next
three years. That plan is to deal only
with planned outcomes and the strategies for achieving those
outcomes.[18]
The draft strategic plan is to be given to the
Ministerial Council which can approve or refuse the draft plan.
Where the Ministerial Council refuses the draft plan, it must
direct SWA to make specified changes to the plan within a specified
time. In that case, SWA must comply with the directions:
subclause 28(4). The Ministerial Council must
approve the altered draft plan when the alterations are made in
accordance with directions: subclause 28(5). When
the strategic plan is approved it is to be published in the way
that SWA considers appropriate: subclause
28(7).
For the avoidance of doubt subclause
28(8) provides that a direction, approval or refusal by
the Ministerial Council in relation to the strategic plan is not a
legislative instrument.[19]
Clauses 29 and 30 are about SWA s operational
plan. Clause 29 requires SWA to prepare a draft
operational plan each financial year and give it to the Ministerial
Council.[20] The
draft plan must deal with the activities which SWA proposes to
undertake and its total amount of expenditure for the financial
year: subclause 29(2).
As with the strategic plan, the Ministerial
Council:
- must approve or refuse the plan: subclause
30(1)
- must direct SWA to make specified changes within a specified
time where the plan is refused: subclause 30(2),
and
- approve the plan when the specified alterations are made:
subclause 30(5).
Once the operational plan is approved it is to
be published in the way that SWA considers appropriate:
subclause 30(7).
Clauses 31 and 32 empower the
Ministerial Council to direct SWA to amend either the strategic
plan or the operational plan respectively in accordance with
clauses 27-30.
Clauses 34-39 set the rules about meetings of
SWA, in particular:
- meetings are to be convened by the Chair and must be held at
least three times in each financial year: clause
34
- if the Chair is not present at the meeting, the voting member
representing the Commonwealth is to preside: clause
35
- where a voting member is unable to attend a meeting, they may
request, in writing, that the Chair approve a substitute in their
place: clause 36. However the Chair does not have
to agree to this request.
According to subclause 37(1)
a majority of the voting members constitutes a quorum. However,
subclause 37(3) provides an exception where the
matter for deliberation or decision relates to the model OHS
legislation, or model OHS codes of practice. In that case there
will not be a quorum unless a majority of all of the voting members
who represent the Commonwealth, States and Territories are
present.
A question is decided by a two-thirds majority
of the votes of the voting members present and voting:
subclause 38(1). However subclause
38(2) provides an exception where the matter for
deliberation or decision relates to the model OHS legislation, or
model OHS codes of practice. In that circumstance, the question is
decided by:
- a two‑thirds majority of the votes of the voting members
present and voting, and
- a majority of the votes of all of the voting members who
represent the Commonwealth, States and Territories.
Clause 40 provides that a
member who has an interest, pecuniary or otherwise, in a matter
being considered by SWA must disclose the nature of the interest to
the meeting. In that case, subclause 40(4)
provides that the member must not be present during deliberations
on the matter and must not take part in any decision on the
matter.
The requirement that a member who has a
conflict of interest must not be present during deliberations on
the matter over which the conflict arises and must not take part in
any decision on such matters does not
apply if the matter relates to the model OHS
legislation or model OHS codes of practice, or if SWA decides the
member may be present or take part: subclause
40(5).
According to the Explanatory Memorandum, this
is to ensure that the requirements of an absolute majority of the
Commonwealth, States and Territories, as provided for in subclause
38(2) is not undermined.[21]
Subclause 42(1) provides a
mechanism for making general decisions
without a meeting. A decision will be deemed to have been made at a
meeting provided that:
- a two‑thirds majority of the voting members entitled to
vote on the proposed decision indicate agreement with the decision
and
- all the voting members were informed of the proposed decision,
or reasonable efforts were made to inform
all the voting members of the proposed decision.
The Bill does not define what amounts to
reasonable efforts .
Subclause 42(2) provides a
mechanism for making decisions about model OHS
legislation or model OHS codes of practice without a
meeting. A decision will be deemed to have been made at a meeting
provided that agreement is indicated by:
- a two‑thirds majority of the voting members entitled to
vote on the proposed decision and
- a majority of the votes of all the voting members who represent
the Commonwealth, States and Territories
All the voting members must have been informed
of the proposed decision, or reasonable
efforts were made to inform all the voting members of
the proposed decision: proposed paragraph
42(2)(c).
In addition subclause 42(3)
provides that decisions can be made without a meeting under the
circumstances set out in subclause 42(1) and (2) only if SWA has
determined the nature of decisions that can be made without a
meeting and the manner in which voting members are to indicate
their agreement.
Clauses 44-58 are about the CEO of SWA. The
functions of the CEO are to manage the administration of SWA and
assist SWA in the performance of its functions. The CEO must
perform the functions in accordance with SWA s strategic plan and
operational plan: clause 45.
According to clause 46 the
Minister may, by legislative instrument, give written directions of
a general nature to the CEO about the performance of the CEO s
functions and requiring the provision of a report or advice about
SWA s functions. [22] In that case the CEO must comply with the direction
that has been given. The CEO must keep the Minister informed of SWA
s progress in the performance of its functions: clause
47.
Similarly, SWA may given written directions to
the CEO about the performance of the CEO s functions and requiring
the provision of a report or advice about SWA s functions. In that
case the CEO must comply with the direction that has been given:
clause 48. However, the CEP is not required to
comply with such directions in certain circumstances, for example,
where they are inconsistent with clause 46 Ministerial directions.
The CEO must keep SWA informed about the progress of its
operational plan: clause 49.
Under clause 50 the Minister
appoints the CEO by written instrument. The CEO holds office on a
full time basis. The period of appointment is not more than five
years.
Clause 52 provides that the
CEO is to be paid the remuneration which is determined by the
Remuneration Tribunal, unless no such determination is in
operation. In that case the remuneration will be prescribed in
regulations.
Appointment of the CEO will end either:
- by resignation: clause 56 or
- on termination by the Minister for the following reasons:
- misbehaviour[23]
- inability to perform their duties because of physical or mental
incapacity
- bankruptcy (or similar)
- absence, except on leave of absence[24] for 14 consecutive days or for 28
days in any 12 months or
- the CEO engages, except with the Minister s approval, in paid
employment outside the duties of their office[25] or
- failure, without reasonable excuse to provide disclosure of
interests as required by clauses 40 and 55: clause
57.
In addition the Minister may terminate the
appointment of the CEO if the Minister is of the opinion that the
performance of the CEO has been unsatisfactory: subclause
57(3).
Clause 59 provides that staff
of SWA are to be engaged under the Public Service Act
1999. In particular, subclause 59(2) provides
that, for the purposes of the Public Service Act 1999, the
CEO and the staff of Safe Work Australia together constitute a
Statutory Agency. Clauses 60-62 respectively
provide that SWA may do the following in the performance of its
functions:
- constitute committees
- be assisted by officers and employees of Agencies, a State or
Territory or an authority of the Commonwealth, State or
Territory
- engage consultants on behalf of the Commonwealth.
This part sets up the SWA Special Account (the
Account) in accordance with the Financial Management and
Accountability Act 1997: clause 64.
The Account will be credited with the
following:
- amounts paid by the States and Territories in accordance with
the Intergovernmental Agreement
- amounts paid by the Commonwealth in accordance with the
Intergovernmental Agreement
- any other amounts paid by the States and Territories for the
performance of SWA s functions
- any other amounts the Commonwealth agrees to allocate for the
performance of SWA s functions and
- the amount of any gifts given or bequests made for the purposes
of the Account: clause 65.
- Clause 66 sets out the costs
and expenses that can be paid from the Account.
Part 8 contains miscellaneous provisions. In
particular clause 70 requires the CEO to prepare
and give to the Minister, to SWA and to the Ministerial Council a
report on SWA s operations during each financial year.
Clause 72 requires the
Minister to conduct a review of SWA s ongoing role and functions.
The review is to be conducted six years after the commencement of
this section of the Bill and must be completed within six months. A
report about the review must be tabled within 15 sitting days of
its receipt by the Minister.
Clause 73 provides for the
making of regulations which are necessary and convenient for
carrying out or giving effect to the Safe Work Australia Act
2008.
- is known as the Workplace Relations Ministers Council on the
day on which the definition commences and
- is constituted so that it consists of no more than one Minister
representing each of the Commonwealth, the States and the
Territories when dealing with matters with which this Act is
concerned.
[19]. The Legislative Instruments Act 2003 defines
a legislative instrument as an instrument of a legislative
character that is, or was, made under a delegation of power from
Parliament . An instrument has a legislative character if it
determines or alters the content of the law rather than applying
the law in a particular case.
[22]. According to section 44 of the
Legislative Instruments Act 2003 the legislative
instrument will not be a disallowable instrument because the
enabling legislation for the instrument (that is, the Safe Work
Australia Act 2008), facilitates the establishment or operation of
an intergovernmental body or scheme involving the Commonwealth and
one or more States.
Paula Pyburne
16 September 2008
Bills Digest Service
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