This chapter examines the evidence received during the inquiry which demonstrates that Australian workers' work health and safety (WHS) rights and protections in the offshore petroleum industry are inferior to those of onshore workers.
The key issues contributing to this situation include:
the challenges in attracting and retaining Health and Safety Representatives on offshore platforms;
the development and accessibility of safety cases for offshore platforms;
the current rights of entry to offshore platforms for WHS purposes; and
the current training and certification requirements for workers performing high risk work.
This chapter will examine each of these issues in turn.
Health and Safety Representatives
Health and Safety Representatives (HSRs) are workers within the offshore oil and gas industry who have been elected or have volunteered to represent a designated work group. Their crucial role in improving WHS was widely recognised by inquiry participants. For instance, according to NOPSEMA, HSRs:
…contribute to improving the safety of the offshore workforce by representing their fellow workers, understanding their health and safety concerns and assisting them to participate in decisions that affect them.
The Department of Industry, Innovation and Science (the department) also recognised the important role HSRs play in representing the workforce and providing views and concerns on health and safety to employers:
HSRs can make a real difference in having health and safety issues addressed and help achieve better health and safety outcomes.
Similarly the Australian Council of Trade Unions (ACTU) submitted that 'HSRs play a critical role in securing work health and safety.' The ACTU submission also contained references to several Australian and international studies which demonstrate the benefits of worker involvement in WHS and in particular a 2007 UK Government report which 'concluded that workplace HSRs caused cost savings of between £136m and £371m (in 2004 prices) due to around 161,000 to 241,000 fewer working days lost in 2004.'
Challenges in attracting and retaining HSRs
The Australian Petroleum Production and Exploration Association (APPEA) informed the committee that feedback from its member companies indicated that attracting and retaining HSRs did not appear to be a prevalent issue in the industry. It noted that while contractor turn-over could present challenges for retaining HSRs, there did not appear to be a challenge in attracting individuals to the positions.
Companies have reported that HSRs indicate they generally feel supported by their colleague and management to undertake their role. The work force and HSRs have reached a level of confidence in processes and culture that they feel empowered to raise issues with management.
APPEA also stated that its member companies 'indicated a strong level of support for HSRs, including providing avenues of communication through to the most senior levels of companies.'
However, the committee received evidence from other inquiry submitters that directly contradicted APPEA's assertions. This evidence identifies that there are in fact significant difficulties in attracting and retaining HSRs, stemming from casual, insecure employment conditions coupled with a lack of support from employers and the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).
In regard to the prevalence of contractor and other insecure employment arrangements, the committee heard from Mr Glenn McLaren of the Western Australia branch of the Australian Manufacturing Workers' Union (AMWU) that a significant component of the workforce on offshore facilities were contractors:
Senator O'NEILL: How many of the workforce are contractors now?
Mr McLaren: I would say 95 percent-plus.
Senator O'NEILL: Tell me: how many people are on one of these rigs?
Mr McLaren: Currently, on the Prelude facility, it has bedspace for about 800 people. Of those 800 people, I would say probably over 700 were contractors—
Senator O'NEILL: And proportionally that would be similar across the other offshore sites?
Mr McLaren: That was during the installation commissioning stage of that project—
Senator O'NEILL: And now we're moving into—
Mr McLaren: Operational.
Senator O'NEILL: Yes. What's the scale there—what are we talking about?
Mr McLaren: Production and operation: I would still say probably 90 per cent contract.
Mr McLaren also stated that regardless of the stage a facility was at, the ratio of direct employees to contractors did not change:
I don't think the ratio changes. You've got the OIM [offshore installation manager] and the senior management, the senior engineer, electrical engineer—they're company people; everyone else underneath is contract.
The ACTU characterised the impact of the nexus between insecure employment and the lack of support for workers from employers and NOPSEMA as follows:
The effect of insecure work on attracting and retaining HSRs is that workers are fearful that taking on the role of HSR, or being active in their role as HSR, will threaten their job security…
Raising an issue in the workplace is commonly known among workers in the industry as 'booking a window seat on the next flight out of here'; meaning that the worker will be removed from the roster or the worksite for speaking up.
Mr McLaren gave an overview of the situation in Western Australia that tallied with the ACTU assessment:
The last dozen or so years have seen rapid expansion in growth in offshore oil and gas and the hydrocarbons industry in Western Australia, as we all know, which is a significant investment in Australia. It has also seen the involvement of a large number of third-party contractors in that sector who have been engaged by some of the previous witnesses [offshore oil and gas companies] to install or complete their projects. We would estimate that well over 90 per cent of those employees of the third-party contractors are in precarious work. They are casuals. Being casual—and transient casuals from time to time—leads to a culture of fear of reporting and of raising one's head above the parapet.
Mr Jeffery Sharp, an organiser for the Victorian branch of the Australian Workers' Union (AWU) put forward an example demonstrating the culture of fear arising out of insecure work:
HSRs are a really big issue offshore. People are not prepared to stick their hands up… we recently had a meeting with an offshore contractor with about 160 people and we spent half an hour trying to encourage them to take on a HSR role. We were extremely unsuccessful. It was pretty poor—not so much on the guys, but on the fact that that threat lies there. If they're sticking their head out of the trench, so to speak, it endangers them and their future employment because the workforce is mainly casual.
Mr Dane Coleman, a former offshore HSR with eight years' experience in the offshore petroleum industry, made similar observations regarding the tenuous position of HSRs:
We're seeing an ever-growing increase in the casualisation and precarious nature of employment through labour hire contracting. The people concerned about safety issues who are willing to speak up seem to be getting black-banned, which is effectively removing these people from their positions in the workforce… The reporting culture of incidents and near misses by a casualised workforce is heavily reduced due to the simple fact that an employee can be terminated without reason for simply following workplace rules.
Mr Coleman also described the victimisation of workers who raise work health and safety concerns:
The protections around the company's own employees are different to the protections around the contract maintenance workforce, which is a major part of the workforce. So you've got the majority of the workforce on a casualised contract basis and, because of the casualised and precarious nature of that work, they are victimised. People who are seen to be speaking up are victimised and they are to not return to the [offshore] platforms—as easily as saying, 'Well, here's a problem; he's bringing up issues that are costing me money over productivity. We don't want him back on this facility.'
The committee also received disturbing evidence about a restricted industry database, the Employment Relations Management System (ERMS), used to check people's participation as HSRs and their record around raising safety concerns on a facility. Mr McLaren explained his understanding of the ERMS:
ERMS has been around for over 10 years. It was developed by for local chamber of commerce and industry by a company called Bright People Technologies and is still in use today. Yes, it talks about travel management plans and competencies, but it also has an employability rating scale—from 'would re-employ' through to 'would not re-employ'.
When asked about the ERMS, three industry representatives (Mr Niall Myles, Senior Vice President of the Australia Operating Unit for Woodside Energy, Mr Christopher Ross, Health and Safety Team Lead of Operations for Chevron Australia, and Mr Graham Salmond, General Manager of Australian Petroleum for BHP Billiton) stated that they had not heard of the database.
The Chief Executive of APPEA, Dr Malcolm Roberts, stated that he was aware of a database and detailed that his understanding was that it was 'used by some operators as a travel booking system and maybe extended to capturing some competency in induction training information used during major capital projects'.
The committee sought further clarification on the existence of such a database from APPEA. In an answer to a question notice, APPEA stated that the system is the 'Electronic Resource Management System', also known as 'Enable', which is operated by Bright People Technologies Pty Ltd:
Enable is used by Asset Owners (predominately Operators) to provide assurance that the workforces coming to site are properly qualified and inducted to perform the work they are coming to site to do.
Once these compliance requirements are met, mobilisation activities including, but not limited to, flight and camp bookings are managed by the software.
Asset Owners do not have access to other Asset Owners data, similarly, Contractors do not have access to other Contractors data.
Each Asset Owner only has access to the records of personal who have been submitted for mobilisation by a Contractor with a contract to provide services to that Asset Owner.
APPEA emphasised that each individual who has been mobilised via Enable had a right to access their information under the Privacy Act 1988, and that Bright People Technologies had established a process to provide this service.
Legislative disadvantages for HSRs
The committee was informed offshore HSRs are disadvantaged in terms of their protections and rights under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act), relative to onshore HSRs who are covered by the Work Health and Safety Act 2011 (WHS Act).
The ACTU submission emphasised the arbitrary nature of the differences between the two acts, stating:
HSRs play a critical role in securing work health and safety. There is no objective justification for why HSRs in the offshore petroleum industry are not afforded the same rights, powers and entitlements as HSRs under the national uniform system [the WHS Act].
WorkSafe Victoria also pointed out the incongruity of offshore workers being afforded lesser protections than their onshore counterparts. As Mr Michael Coffey, Head of Hazardous Industries and Industry Practice for WorkSafe Victoria stated:
There is no valid reason for any disparity between the health and safety standards that apply to workers based onshore or offshore. Workers who work on offshore sites should be afforded the same protections and representation as those on land.
In addition to this, the Victorian Government indicated its support for legislative amendments to improve equity between offshore and onshore workers:
Victoria supports appropriate amendments to the OPGGS Act to improve consistency with the model WHS regulatory framework, where such alignment will improve standards of OHS at offshore petroleum and gas storage facilities.
The ACTU submission provided a long list of deficiencies in the OPGGS Act compared to the WHS Act. For example:
The WHS Act allows for workers to autonomously determine the manner in which they elect an HSR. The OPGGS Act does not.
The WHS Act requires that an HSR be a member of the health and safety committee, if he or she consents. The OPGGS Act does not contain an equivalent provision.
The WHS Act requires that the person conducting the business or undertaking (PCBU) prepare and maintain a list of HSRs for each group of workers carrying out work. The list must be displayed in a manner that is readily accessible to the relevant workers, and must also be provided to the regulator as soon as practicable after it is prepared. While the OPGGS Act requires the operator of a facility to prepare and maintain such a list and ensure that it is available to the workforce and inspectors, there is no requirement for it to be provided to NOPSEMA.
The Work Health and Safety Regulations 2011 (WHS Regulations) entitle an HSR to an initial training course in WHS of up to five days, and up to one day's refresher training each year. The OPGGS Act contains no equivalent prescription for the period of initial or refresher training.
The WHS Act allows an HSR to choose the approved HSR training course that they undertake (in consultation with the PCBU), and requires the PCBU pay the course fees and other reasonable costs associated with attendance at the training. The OPGGS Act contains no equivalent provisions allowing an HSR to choose their course, nor requiring the operator to cover reasonable costs.
Section 70(1) of the WHS Act requires that the PCBU provide an HSR with certain rights and benefits to assist and support them in performing their role. The equivalent provision of the OPGGS Act, Section 40(1), is comparatively deficient in some respects. For example, s 70(1) of the WHS Act provides for facilities and other assistance afforded to HSRs, which s 40(1) of the OPGGS Act does not contain.
Under the WHS Act, only a court can disqualify an HSR. Under the OPGGS Act, NOPSEMA may disqualify an HSR. Although under the WHS Act a court can disqualify an HSR indefinitely, under the OPGGS Act, NOPSEMA can only disqualify an HSR for a period not exceeding five years.
In regard to point (a), the department sought to correct information provided by the ACTU and the Victorian Government:
…they stated that the OPGGS Act does not allow for workers to autonomously determine the manner in which they elect an HSR. This claim is incorrect. The OPGGS regime does not preclude workers from autonomously determining the manner in which they elect their HSR. Instead, the [OPGGS] Act allows for the workforce to control the process for selecting an HSR for a designated work group…
Relating to points (d) and (e), the Victorian Government also drew the committee's attention to the differences between the WHS Act and OPGGS Act regarding the selection of HSRs and the support to be provided in terms of training course choices and costs. It stated:
Workers should be entitled and encouraged to be represented in relation to health and safety issues. The model WHS Act and the OHS Act [Occupational Health and Safety Act 2004 (Vic)] provide a more robust framework for employee participation and representation. Victoria supports further alignment of the OPGGS Act with the model WHS Act participation and representation provisions.
In regard to the training arrangements for offshore HSRs under the OPGGS Act, the committee heard from Mr Troy Carter, a member of the AMWU, who outlined his experience:
As a HSR who worked offshore, I was not able to choose a HSR training course; I was only provided with one option, which was with Federation Training. This was carried out at the ExxonMobil training facility in Longford, where our teacher spend more time telling us stories and showing us personal videos that explaining our rights as HSRs, showing us how to read and interpret the act or explaining what to do should we need to challenge the employer on failing to provide a safe, as low [risk] as reasonably practicable, workplace. If I was an onshore worker in Victoria, under section 67(3) of the OH&S Act [Occupational Health and Safety Act 2004 (Vic)] and section 72 of the model Work Health and Safety Act, I would have had the right to choose, in consultation with my employer, who I would like to complete my training with. The right to choose is an important democratic right, which is denied to us and is out of step with all other H&S regimes.
NOPSEMA noted that although the OPGGS Act does not prescribe that the operator or employer must pay for OHS training for HSRs, it does mandate that the operator or employer must permit the HSR to take time off work to attend training, without loss of remuneration or other entitlements. On this matter, NOPSEMA also stated that to the best of its knowledge, in the majority of instances, employers of HSRs pay for OHS training.
Mr Christopher Ross, Health and Safety Team Lead for Chevron Australia, who was appearing as part of the APPEA panel advised:
Industry has to provide the time for the HSRs to complete that [HSR] training, but, in most cases, we fund that training too.
In relation to point (c), during the inquiry the committee received evidence that NOPSEMA did not keep a register of HSRs on offshore facilities. The AWU observed:
Our members understand that the NOPSEMA also does not keep a consolidated list of all HSRs currently working in the industry, and by implication a list of HSRs on each site, contact details, and other generic information. For this reason there is limited scope for the NOPSEMA to oversee any potential behaviour from employers in favouring an HSR that will tolerate [WHS] breaches in exchange for job security.
Mr McLaren of the AMWU also commented that NOPSEMA does not keep a consolidated list of all offshore HSRs:
Something that has always struck me as absolutely bizarre is that NOPSEMA is one of the only regulators who does not capture who the HSRs actually are—when their term of office commenced, whether they were elected by the workforce, when their period of office starts and finishes, when they did training, who they do their training with or any direct communications with HSRs. When NOPSEMA attends a facility to conduct an inspection, they have to ask the employer who the HSRs are. The HSRs are the eyes and ears of the regulator on the shop floor and so they should be. But NOPSEMA does not do that. The only thing NOPSEMA does in relation to HSRs is accredit the registered training organisation that delivers the HSR training. It doesn't even have an email database to communicate directly with them [HSRs] about emerging trends or findings. I find that extremely disturbing.
NOPSEMA confirmed that it does not have a register of HSRs. It did however note that each facility operators is required to maintain a list of all HSRs which NOPSEMA inspects when it conducts an inspection at the facility.
The department provided the following information on the legislative requirements relevant to this matter:
Under the OPGGS Act, the operators of a facility must prepare and keep up to date a list of all the HSRs of a designated work group and ensure the list is available for inspection, at all reasonable times, by the members of the workforce at that facility and NOPSEMA inspectors (Schedule 3, Clause 27). While the OPGGS regime does not require the operator to provide updated lists of HSRs to the regulator (like the WHS Act does), the department notes that the model WHS laws were amended on 21 March 2016, with a focus on reducing regulatory burden and streamlining or simplifying without compromising safety outcomes. As part of this, the Council of Australian Governments WHS ministers agreed to remove the requirement under section 74 of the Model Work Health and Safety Bill for persons conducting the business or undertaking to provide a list of HSRs to the regulator. The OPGGS Act is thus now consistent with the WHS model laws in this respect.
The committee is greatly concerned that workers' WHS rights and protections in the offshore petroleum industry are inferior to those of onshore workers. In an industry that is inherently hazardous and remote such as offshore petroleum, it is highly perverse that inferior WHS rights and protections are afforded to workers. At the very least workers in the offshore petroleum industry should be afforded the same WHS rights and protections as other Australians.
To that end, the committee is recommending a number of legislative changes designed to bring the rights and protections for offshore workers in line with those afforded to onshore workers.
One area where this inconsistency is particularly acute is the involvement and treatment of HSRs. In this respect, the committee observes there is a significant gap between HSR arrangements as claimed by industry participants, and the reality of the situation as experienced by workers on the offshore facilities.
The committee is of the strong opinion that the workplace culture generated by insecure work makes the need for adequate and effective support and protection for HSRs absolutely critical. In addition to the recommendations contained in this chapter, Chapter 4 of the report highlights and makes recommendations in regard to serious concerns about NOPSEMA's approach to engaging and supporting HSRs.
The committee acknowledges the evidence from the department that the model WHS Act no longer requires for persons conducting a business or undertaking to provide of list of HSRs to the regulator.
However, in light of the evidence received during the inquiry indicating a distinct lack of engagement between NOPSEMA and offshore HSRs, the committee is convinced that a centralised HSR register managed by NOPSEMA is warranted. Given that operators are already required to maintain and display lists of HSRs on their facilities, it would not be an onerous undertaking for these lists to be provided to NOPSEMA.
The committee also notes that the department is currently undertaking a review of the offshore safety regulatory regime which will consider all safety issues relevant to the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 and the Schedule 3 of the OPGGS Act, which will include the HSR framework and right of entry provisions for work health and safety purposes. The committee is supportive of this initiative and looks forward to following the progress of the review which is due to report in mid-2019.
The committee recommends that the Offshore Petroleum and Greenhouse Gas Storage Act 2006 be amended to provide for consistency with the Work Health and Safety Act 2011 in regard to the rights, powers and entitlements of Health and Safety Representatives (HSRs), including but not limited to matters identified in paragraph 3.27 of this report.
The committee recommends that the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) be required to maintain a register of offshore Health and Safety Representatives which includes:
the HSR's name, position and contact details;
the details of the training the HSR has undertaken in the previous 12 months;
the employer of the HSR; and
the work group the HSR represents.
Development and accessibility of safety cases
During the inquiry the development and accessibility of safety cases was raised as an issue requiring regulatory improvement.
As outlined in Chapter 2, an offshore facility cannot be constructed, installed, operated, modified or decommissioned without a safety case in force for that stage in the life of the facility.
NOPSEMA stated that while preparing a safety case, operators must ensure that there is effective consultation with, and participation by, members of the workforce. It also stated that when assessing a safety case, it takes into consideration the extent to which this has been demonstrated.
The ACTU emphasised the importance of workforce understanding and involvement in a safety case in order to ensure risk is properly managed and facilitate continuous improvement in health and safety outcomes.
The department also put forward a similar argument for why the involvement of the workforce is 'essential' in the development of a safety case:
Workforce involvement is necessary so they [workers] are able to arrive at informed opinions about the risks and hazards to which they may be exposed, and in turn, means they are more likely to do the right thing regarding safety because they know and understand why it is required.
However, the ACTU raised concerns that in some situations, adequate consultation was not undertaken with the actual workforce employed during the operation of the facility. As Mr Michael Borowick, ACTU Assistant Secretary explained:
To set up a facility in Australia, you need a safety case. It's done at the very beginning of the process when very few hands-on workers are yet employed. That's done by contractors typically, later. So the safety case is developed and approved with almost no workforce involvement. It's only able to be reviewed after a five-year period, and of course that's beyond the life of most offshore petroleum facilities in Australia. As I said, a review can't be triggered by a HSR. It's almost a recipe for self-regulation; that's what it amounts to. I understand it's an important document. We're not opposed to it, but it needs drastic reform if it's to continue.
NOPSEMA offered the committee the following information 'to correct the claims made within the ACTU statement':
For new facilities, NOPSEMA can advise that for the facilities most recently constructed in the Australian offshore petroleum regime, members of the workforce employed onboard those facilities were also employed during the building stages in Korea. Members of the workforce had demonstrably been consulted for the various safety cases submitted to NOPSEMA for assessment well after the majority of the workforce had been employed. The evidence for workforce engagement provided with the safety case submissions demonstrated that these engagement activities included technicians at the 'shop floor' level.
Regarding the revision of safety cases, NOPSEMA submitted:
For existing facilities, there are a range of triggers for the revision of a safety case that must be submitted to NOPSEMA which are broadly characterised as 'change of circumstances or operations' (Refer Regulation 30 of the OPGGS (Safety) Regulations. Since 2005 a total of 1,239 safety case submissions have been made to NOPSEMA covering 356 facilities (pipeline facilities excluded). Revised safety case submission due to changes in circumstances or operations account for 76% (799) of these revised safety case submissions (1,051) whereas 5-year revisions only account for 18.5% (194). In the same period 188 new safety case submissions were also made and 34 revisions were requested by NOPSEMA.
The committee put these concerns to industry representatives, noting that it had received evidence that the development of a safety case at the beginning of a project only involves a limited number of people and did not involve people representing the bulk of the workforce that would be working under those conditions. Mr Christopher Ross of Chevron Australia responded:
It's not entirely accurate to say that the workforce isn't involved in the development of an initial safety case. We have to understand that there are multiple safety cases that would exist in the lifetime of the facility. Quite often the first safety case that is drafted is around the installation and construction of that facility and at that point the management system that is described within that safety case speaks largely to the health and safety risks of carrying out that black trade type of work, of which the bulk of the documentation within the safety case around that is workforce delivered or written information, whether it be safe work practices, procedures or things like that. During the course of installing and constructing and commissioning these facilities you would be at the same time writing your start-up and operations safety case, and at that point in time that's when you're talking about the majority of your major accident events, and at the same time you have already recruited your operations workforce and are training them ready to operate that facility. So they are in fact quite heavily involved in the longest applicable safety case that applies to the facility.
To address its concerns, the ACTU recommended that the relevant unions be involved in the development of the initial case as the representative of the workforce.
Another issue raised was the accessibility of the NOPSEMA-approved safety case. The committee heard that safety cases on offshore facilities were often kept in a manager's office, or in the radio operator's room; locations where HSRs or other employees must advise the manager they wish to look at the safety case.
When queried directly on whether HSRs have access to the safety case on an offshore facility, Mr Shane Roulstone, National Organiser for the AWU answered:
The short answer is: technically, yes, but you'd be a very brave health and safety rep in the offshore industry to go and see the safety case. You'd have to speak to the shift manager on duty, and he would ask you why. And then if you checked the safety case and you raised a safety concern, you would not be required back if you were contract employee. If you were a full-time employee, you would be highly likely to be targeted and managed appropriately.
The AWU written submission also provided evidence of these concerns:
In many instances, HSRs cannot adequately recognise a breach on an offshore facility without reference to the site's safety case. The process to review safety cases at most facilities is formal and require oversight from management, as well as the logging of personal that access the safety case. As such, there is no unidentifiable access to a safety case by HSRs, which, alongside the predictable nature of a NOPSEMA inspection, exacerbates fear of persecution and reduces the capability of HSRs to conduct their job effectively.
To alleviate this fear of victimisation and persecution, the ACTU suggested that a copy of the safety case should be available to each facility's HSRs, including by remote online access.
The committee sees merit in requiring consultation with the relevant unions in the development of the initial safety case for a facility, as well as requiring a review of the safety case to take place once the operational workforce is hired. The committee is of the opinion that such requirements would ensure meaningful consultation around safety cases, create workforces better informed about safety cases, and facilitate improved health and safety outcomes for all offshore stakeholders.
The committee is concerned by the evidence it received that indicates that HSRs are wary of accessing safety cases on offshore facilities for fear of being questioned or persecuted by management. It is of the strong view that such a fear is detrimental to achieving positive health and safety outcomes. As such, the committee sees merit in requiring that a copy of the safety case should be genuinely accessible to HSRs, including by remote online access.
The committee recommends the Offshore Petroleum and Greenhouse Gas Storage Act 2006 be amended to provide for:
a requirement for consultation with the relevant unions in the development of the initial safety case;
a requirement of a review of the safety case to take place with the workforce once hired (and before the commencement of operations, where possible);
a requirement for HSRs to be provided with a copy of the safety case; including by remote online access; and
an ability for an HSR to trigger a review and revision of the safety case in certain circumstances.
Right of entry to offshore platforms for work health and safety purposes
Part 7 of the WHS Act contains the work health and safety entry permit system for workplaces. This provides union officials with the ability to enter a workplace to inquire into safety issues and consult with and advise workers on WHS matters in certain circumstances.
The OPGGS Act does not establish equivalent right of entry arrangements in relation to offshore petroleum and gas storage facilities.
Several submitters, including the ACTU, Victorian Government, the AMWU and the AWU observed that there was no justification for offshore workers to be treated differently from onshore workers under the national uniform system on this issue.
In this regard the submission from the Victorian Government stated:
Victoria recognises the positive role that employee organisations play in supporting employees and employers to identify and resolve OHS issues. Victoria supports increased alignment between the OPGGS framework and the model WHS framework in regards to entry by authorised representatives of employee organisations.
The ACTU noted that the WHS Act right of entry provisions cannot be directly transposed to the offshore petroleum industry due to the remote locations of the work. It emphasised that parts of the WHS Act right of entry provisions would need to be modified for the offshore industry:
Right of entry provisions in the OPGGS Act will need to require the occupier to facilitate transport of the permit holder to the facility for right of entry purposes. Part 3-4, Division 7 of the Fair Work Act 2009 (Cth) provides an example of the way in which this requirement might operate, although cost has posed a barrier to the effectiveness of this system. The cost issue could be avoided in the offshore petroleum industry context because the cost of transport should be recovered from industry by the levy revenue to the NOPSEMA under the 'user pays' system.
The ACTU also flagged that under the WHS Act, a permit holder may only enter a workplace for the purpose of inquiring into a suspected contravention of the WHS Act. In light of the difficulties of accessing remote offshore work locations, the ACTU suggested this limitation would need to be removed in a right of entry system implemented in the OPGGS Act. It recommended that the system be designed so that a permit holder could investigate multiple suspected contraventions in one entry, including additional contraventions identified during the course of the entry.
NOPSEMA indicated to the committee that it was not opposed to a specific class of person accessing a facility, provided all safety requirements were met:
As the regulator, NOPSEMA does not have a view on any specific class of person gaining access to a facility, subject to that person meeting all safety requirements set by the industry operator and that the person does not unreasonably increase the safety risk to an aspect of themselves, offshore workers or the facility. Where arrangements for union access to offshore facilities exist in other international jurisdictions such as the regulatory model in Norway, the regulator is not typically involved in decision-making on access to offshore facilities.
The ACTU submission also pointed out that access to offshore facilities is part of WHS regulation in other jurisdictions internationally.
The committee is of the opinion that there is no reason why the OPGGS Act should not establish a suitably modified right of entry framework for offshore petroleum facilities based on the model provided for onshore workers in the WHS Act.
The committee notes that NOPSEMA does not take issue with a specific class of person gaining access to a facility, providing all safety requirements are met and the person does not unreasonably increase the safety risk to themselves, the offshore workers or the facility.
The committee recommends that a right of entry for work health and safety purposes be established under the Offshore Petroleum and Greenhouse Gas Storage Act 2006, requiring:
the operator of the facility to, as soon as possible, facilitate transport for the permit holder for right of entry purposes;
the cost of transport for the permit holder for right of entry purposes to be recovered from industry by a levy revenue to NOPSEMA; and
an ability for the permit holder to exercise entry for the purposes of inquiring into multiple suspected contraventions of the Offshore Petroleum and Greenhouse Gas Storage Act 2006, including additional contraventions identified during the course of the entry.
Training and certification for high risk work
Submitters to the inquiry raised the issue of lack of, or deficiencies in training and certification for high risk work required under the OPGGS regime.
The ACTU advised the committee that in the majority of Australian work health and safety jurisdictions, the operation of specific high risk work is governed by a system of certification or licensing designed to minimise the risk of adverse consequences associated with a lack of competency. In the broader WHS Act this system requires completion of a VET course to obtain the requisite licence. However, the 'permit to work' system in the OPGGS Regulations is 'far less rigorous' and does not require certification or licensing:
It [the OPGGS regime] does not require certification or licensing, but simply requires that the ‘safety case for a facility must provide for the operator of the facility to establish and maintain a documented system of coordinating and controlling the safe performance of all work activities of members of the workforce at the facility’.
The Victorian Government identified the same issue:
Unlike model WHS and OHS regulatory frameworks, the OPGGS framework does not provide for a high risk work licensing scheme. There are no requirements to use licensed operators for any high risk equipment at offshore facilities. This effectively means that workers at offshore petroleum facilities are able to operate equipment without a licence, such as a forklift, which would ordinarily require a high risk work licence under model WHS or OHS regulator frameworks.
Similarly, the AMWU noted:
There is no high-risk work licensing for high-risk work offshore, whether that be a rigger, a crane operator and so on. If that same person was to work on land, they would need to have a high-risk license.
Mr Peter Mooney, State Organiser for the Victorian branch of the Electrical Trades Union (ETU) provided further detail on this issue from his personal experience:
There's not a standard in the offshore industry to guarantee that people have the necessary training and skills. One of the things that I would like to see come out of this [inquiry] and be added to the act [OPGGS Act] is that there be a strong emphasis on people's qualifications. We're seeing people in the electrical and instrument trade in particular who go off and do what we call a dual-trade. They go off and do a course that goes for about eight weeks in relation to instrumentation, and they think they're qualified for instrumentation. Most apprentices who take on instrumentation do a four-year apprenticeship, and you need to meet certain criteria. These people don't have the skills to calibrate important instrumentation that ensures the operation of the platform through those things. We're seeing people with skills who would not be allowed to operate onshore but are allowed to operate offshore.
Additionally, the committee was given a specific example by Mr Sam McNeill of the Victorian branch of the AWU:
Earlier this year Esso engaged a subcontractor called Busicom to employ contract operators. That brought concerns for its members, full-time Esso and operators. We're hearing that in a safety capacity it did bring more issues over and above that. […]
I investigated along with my members and guys that have been doing this job for 20, 30 or 40 years and asked them about the system for the training, regarding where you get to for your level that you're on, whether you're a tech 1 or 2. It was constantly told to me that even someone who's worked for Esso onshore who's then moving to offshore, to get to the so-called standard that Esso would want, it's a minimum of a year and sometimes two years. If you're coming off the street, so to speak, and you haven't worked for a while previously, it could definitely take up to 18 months or two years…
These contractors were told by Busicom that they would have the full training and they'd be at the top-rate capacity, as were the guys up top who had 20, 30 or 40 years experience, in six months. When I brought that issue to Esso I was told, in no uncertain terms, 'That's our policy. We can show you the policy. We're going to put these [contractors] through this training and, yes, in six months time they'll be classed.' There are two standards. To me, that was a safety concern to bring to NOPSEMA's attention.
Both the ACTU and the Victorian Government supported the establishment of a high risk work licensing scheme within the OPGGS regulatory framework.
The Victorian Government submission summarised the logic behind this recommendation as follows:
The operation of high risk equipment requires a licence to ensure that appropriate training is undertaken to operate the equipment safely. This not only protects the operator, but also those working within the vicinity of the high risk equipment. The risks associated with high risk equipment are inherent and are not confined to particular industries. Therefore, it is appropriate that equipment which requires a licence to operate onshore should require a comparable licence to operate offshore.
The committee is concerned that it appears that individuals without appropriate qualifications are being put into offshore environments that are by their nature high risk environments.
The committee is of the strong opinion that individuals working offshore must have the same calibre of qualifications as those required by individuals working onshore.
For this reason the committee is of the view that the high risk work licensing requirements under the OPGGS framework must be made consistent with those in the WHS Act that govern onshore work.
The committee recommends that Offshore Petroleum and Greenhouse Gas Storage Act 2006 be amended to provide for consistency with the Work Health and Safety Act 2011 in regard to a licensing system for workers performing high risk work.