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FRLI ID: F2012L02503
Portfolio: Defence
Summary of committee view
2.1
The committee considers that this instrument limits the right to just
and favourable conditions of work, in particular the right to safe and healthy
working conditions. The committee seeks further information as to why exempting
certain requirements in their entirety under the Work Health and Safety Act
2011 is a reasonable and proportionate limitation on the right to a safe
and healthy working conditions.
Overview
2.2
This instrument declares that specified provisions of the Work Health
and Safety Act 2011 (the Act) do not apply, or apply subject to
modifications and adaptations, in relation to Defence activities and Australian
Defence Force members.
2.3
In particular, the instrument declares that the following sections of
the Act do not apply to Australian Defence Force warlike and non-warlike
operational deployments:
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Section 38 – Incident notification;
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Section 39 – Site preservation.
2.4
Further, the instrument declares that the following sections of the Act
do not apply to all Australian Defence Force (ADF) members:
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Sections 47-49 – Consultation with workers;
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Sections 50-79 – Health and safety representatives and work
groups;
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Sections 84-89 – Right to cease or direct cessation of unsafe
work.
Compatibility with human rights
2.5
The statement of compatibility notes that the instrument engages the
right to just and favourable conditions of work, including the right to safe
and healthy working conditions, contained in article 7 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR). It states that:
These rights are limited because of military necessity, both
in terms of the discipline and nature of military service and for operational
reasons such as where radio silence is required or where Defence is undertaking
a hazardous activity in a foreign State and does not have 'management or
control' of a site.
2.6
Further, it is suggested that the limitations on these rights are
reasonable, necessary and proportionate as they are 'necessary for efficient
operation and functionality of the military and consequently in the public
interest, that is to meet the Australian Government's defence policy.'
2.7
The statement of compatibility explains that internal procedures are
also in place to ensure the workplace health and safety of defence force
members:
The Defence Safety Management System is designed to give all
Department of Defence workers the highest level of protection that is
reasonably practicable against harm to their health, safety and welfare from
hazards and risks arising at work. With respect to Australian Defence Force
warlike and non-warlike operational deployments, Defence continues to notify,
report and where appropriate, investigate notifiable incidents internally and
records of these reports and investigations will be made available to the
Regulator on request.
2.8
The committee considers that this instrument appears to limit the right
to just and favourable conditions of work, in particular the right to safe and
healthy working conditions. Any such limitations must be shown to be necessary,
reasonable and proportionate.
2.9
It is unclear from the statement of compatibility why certain provisions
of the Work Health and Safety Act 2011 are to be removed from all ADF
members, regardless of whether they are on an international posting or are working
in Australia. While the right of everyone to join trade unions in article 8 of
the ICESCR does not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, article 7, which
includes the right to safe and healthy working conditions, has no such
limitation.
2.10
It is also unclear why the instrument exempts in its entirety the
sections of the Act in relation to incident notification and site preservation
for ADF warlike and non-warlike operational deployments. The committee understands
that immediate notification of an incident may not be possible in overseas
deployments, but it is unclear why the instrument could not subject the
provisions to any necessary modifications, for example to give greater time for
notifications (as provided for by section 12D(2) of the Work Health and
Safety Act 2011.
2.11
The committee intends to write to the Minister for Defence to seek
further information as to why exempting certain requirements under the Work
Health and Safety Act 2011 in their entirety is a reasonable and
proportionate limitation on the right to safe and healthy working conditions
under article 7 of the ICESCR.
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