SPEAKING ON A BILL | WORKSAFE LEGISLATION AMENDMENT BILL 2017
Mr MELHEM (Western Metropolitan) — I rise to speak on the WorkSafe Legislation Amendment Bill 2017. In doing so I want to remind the house that the purpose of this bill is to give some teeth to WorkSafe and the Health and Safety Authority to be able to enforce current legislation. I should not be surprised at the amendments circulated by the opposition in relation to this bill. If these amendments were accepted, it would defeat the whole purpose of the bill and we basically may as well not have the bill.
Very briefly, this bill proposes to ensure that if an employer gives an undertaking to fix a health and safety issue in the workplace, then that employer must live up to his or her commitment. That is basically what we are saying with this bill. If he or she fails to do so, then a significant penalty will be attached to it, and what would be wrong with that? If you do not breach the Occupational Health and Safety Act 2004, you will not have anything to worry about.
Over my 23 years in previous jobs, I have seen employers breach the health and safety act, some of them by ignorance, some of them by design and some of them by accident and not design. This bill is not trying to penalise employers who actually do the right thing. It is basically saying to the employers who do the wrong thing and then give an undertaking that they are going to rectify whatever breach there may be that WorkSafe or the authorities will be able to issue fines if the employers do not rectify the breach.
This avoids spending time in the courts, because as I understand it, WorkSafe currently has enough on its hands in trying to enforce the current legislation in relation to, for example, the right of entry for union officials in relation to health and safety inspections when they are invited in by the health and safety representative on a job site under the authorised representatives of registered employee organisations provisions. Now the federal government is using the federal industrial relations legislation to prevent these people from attempting to go in to assist health and safety representatives. My understanding is that WorkSafe has gone to the courts to try and get some orders from the court to be able to enforce that.
Mr Rich‑Phillips in talking about his amendments was basically saying, ‘It’s okay. We should be able to trust these employers to self‑regulate. We’ll trust them to do the right thing all the time and comply’. Well, I am sorry, but that does not work. Unfortunately from time to time we need to be able to give WorkSafe the tools it needs to force an employer in breach of their obligations under the health and safety act to give an undertaking.
Mr Rich‑Phillips talked about the year 2010. At one stage there was talk about putting in place a national framework for health and safety regulations across the country. I think that would have been a great thing. The Victorian legislation at the time was going to be used as the benchmark. The reason that did not go ahead was that New South Wales had some issues with some of our regulations and the Liberal government there did not want it to happen. When the government changed, there was an issue about whether or not unions could prosecute employers over a breach of the health and safety act. Anyway, the whole thing fell over, but Victoria was definitely the benchmark. We had good legislation once, and we still do.
The reason we are putting in these further changes is because, let me remind the house, last year 26 people were killed in Victoria — they lost their lives on worksites. That is 26 too many. If we can do anything to avoid further fatalities in the workplace, I think we should. We should try to do everything we can to avoid that. Of the 26 fatalities, 13 were in Melbourne and 14 in regional Victoria; eight were in the agricultural industry, seven in construction, five involved tractors and four were caused by falling from height.
We do have reasons and arguments for why we need to send a message to employers. This is not about the employers who are doing the right thing. Employers are doing the right thing; the vast majority of employers in this state do the right thing. There are employers who may accidentally injure or kill people — and these sorts of accidents can happen from time to time — but we are talking about situations where there is clear negligence, and when employers fail to live up to their commitments that penalty will now be increased.
We are talking specifically about situations where a WorkSafe inspector inspects a workplace, finds a breach and reaches an agreement with the employer to rectify a particular problem within a particular time frame. That may be modifying a piece of equipment like, for example, putting a guard on a conveyor belt. When the inspector comes back in, say, three months and the employer has failed to do so without any proper excuse, what will they do? The employer again gives an undertaking to fix it within three months, then that three months pass and the inspector comes back and nothing has happened. So they come back in another three months.
The system will be designed to recognise that employers have given an undertaking. These sorts of things normally happen after an injury. A trigger point can be when an injury has occurred, or in some cases a fatality. The intention will be to avoid all injuries and fatalities. That is why there will be an agreement in place to rectify the situation. What this bill provides is that if an undertaking is breached and there is no excuse, reason or explanation as to why it was breached, then WorkSafe can apply a penalty. To me that is fair. There is nothing unfair about that. It is not unreasonable to actually have that penalty apply in the particular example I have given. To just simply leave it to the employers to resolve compliance in these instances, I think, will not work. As I said earlier, it is not about the 99 per cent of employers in this state who do the right thing.
I think credit goes to WorkSafe and the job they have been doing over the years. Things are improving in this state. Notwithstanding that, I talked about the 26 fatalities we had last financial year. The rate of WorkCover injury claims in Victoria is falling, which is good news; it has fallen from 8.23 claims per million hours worked in 2011–12 to 6.95 claims per million hours worked. So we are making some improvement. But I think putting the proposed legislation into action will further send the message out to some employers that in Victoria the state government is giving WorkSafe the tools and equipment to basically say, ‘If you don’t comply with your own undertaking, a heavy penalty will apply’.
Some of the cases we are talking about here which we are currently facing, for example, include the prosecution of a lighting business for failing to notify WorkSafe after an employee suffered a serious laceration when a steel beam fell and struck him on the head. The employer pleaded guilty and was fined $750 without conviction. I will give you the name of the employer. It is Tambo Ash Pty Ltd. Mr Rich‑Phillips talks about how, if an employer fails to notify, we should not increase the penalty because the current penalty is enough. It is $750! The question is: has that employer made the decision to say, ‘I don’t need to do that. If I’m caught, it’s just $750, so I’ll just do that’?
I will cite a second example. WorkSafe prosecuted an employer for failing to notify WorkSafe after an employee fell 2 metres off a ladder while undertaking maintenance works. The employee required immediate treatment as an inpatient in hospital. The employer pleaded guilty and was fined $1000 without conviction. The employer is Pickles Auctions Pty Ltd.
The other thing is in relation to the two‑year limit on prosecutions. This goes to an example where a heavy rigid fuel tanker decoupled and hit two vehicles travelling in the opposite direction, killing three people — we all know about that — I think on the Tullamarine Freeway. A WorkSafe inspector attended the scene of the accident. However, the matter was initially investigated by Victoria Police. In the course of the Victoria Police investigation evidence came to light that the servicing of the tanker had not been conducted correctly. This allowed its condition to deteriorate to the point of catastrophic failure. The matter was referred to WorkSafe to investigate the responsible mechanic for a possible breach of the Occupational Health and Safety Act 2004. By this time more than 21 months had passed and there was insufficient time remaining for WorkSafe to undertake an investigation into the matter and bring a prosecution within the current two‑year limitation period. WorkSafe’s normal time frame for undertaking investigations and bringing prosecutions is 12 months. The employer was Heavy Mechanics Pty Ltd. That is another example. That is why we are making some changes to the current legislation: to give the ability to WorkSafe to basically deal with this. That was quite a serious incident. I can go on; there are a number of examples I can go through.
The government did not wake up one day and say, ‘Look, we just want to impose additional penalties on employers who actually fail to live up to their commitments and undertakings because we feel like doing that’. That is not the case. It is based on hard evidence, stakeholders, industry, employers, unions and WorkSafe basically saying, ‘We need to do something to actually improve the current regime and make sure that WorkSafe have been given additional tools to be able to enforce undertakings and to enforce and improve health and safety regulation in the state’. This will make sure that we do not have people killed and that people who are found negligent simply do not get away with it lightly, like in some of the examples I have just given. The whole purpose of it is to make sure that when Victorian workers go to work they have got confidence that there is a law in place and that the authorities will have the tools and the means to basically enforce the law to make sure that after they go to work in one piece they will go home to their loved ones in one piece. With these comments, I commend the bill to the house.
21 September 2017