Worksafe Legislation Amendment Bill 2017


Debate resumed from 23 June; motion of Ms PULFORD (Minister for Agriculture).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to make some remarks this afternoon on this latest WorkCover bill, which is an omnibus bill that seeks to amend the Accident Compensation Act 1985, the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 and the Workplace Injury Rehabilitation and Compensation Act 2013.

The suite of WorkCover legislation has been subject to many amendments over the course of the last 30 years. Of course the most significant reform and restructure of the WorkCover system took place in 2013, when the coalition government introduced the Workplace Injury Rehabilitation and Compensation Act, which was a rewrite and consolidation of the existing WorkCover accident compensation legislation. The intent of that rewrite was to update and clarify what was incredibly complex legislation whilst also preserving critical elements of the 1985 act, given that many of those aspects were subject to litigation. It was important in framing the new act that those provisions were preserved because they had been subject to and tested by way of litigation, and it was important to retain in many instances the effect of existing provisions.

Likewise the WorkCover scheme in its various iterations back to the 1970s and earlier had taken a number of different forms, and while the numbers of parties involved in many of those older schemes are very small, it was nonetheless important that those earlier schemes were preserved and continued to apply in respect of people who were claimants under those schemes. For that reason the Accident Compensation Act 1985 remains on the statute as the vessel which holds the redundant schemes for those people who are still receiving support under those schemes, while the current scheme and new claims are handled under the Workplace Injury Rehabilitation and Compensation Act 2013.

The other two pieces of legislation which are amended by this bill are the Dangerous Goods Act 1985 and the Occupational Health and Safety Act 2004, which sets down the framework for OHS in Victoria.

Just in relation to the OHS act I can say it is a welcome development that we still have the OHS act in force here in Victoria. When the previous government came to office in 2010 it was in an environment where the previous Brumby government, as other governments around Australia had done in their jurisdictions, committed Victoria to signing up to the national scheme which had been developed through the Council of Australian Governments (COAG) process to implement a harmonised model of workplace safety regulation. Now, the fundamental flaw with that harmonised national model was that it was developed through a process which required compromise across the states and territories.

Victoria, going into that COAG process in 2008–09 which resulted in the national model, was recognised as having the best OHS framework in Australia. Many of the other states and territories that were coming to the table as part of that OHS harmonisation model had legislation which was in many respects deficient, relative to the Victorian model, with some quite substantial differences relative to the Victorian model, which nonetheless have been incorporated having regard to what I will politely call local sensitivities in those various jurisdictions. That meant that in adopting and agreeing to a national model, the starting place being the Victorian model, a number of compromises were built into the national model to reflect local features of in particular the New South Wales and Queensland models. The consequence was that when the previous Brumby government committed Victoria to the national model, the model Work Health and Safety Act, they were in fact committing Victoria to a model which meant Victoria took 10 steps backwards so that states like New South Wales and Queensland could take 20 steps forward.

It was the view of the subsequent coalition government of the day that that was not the way for Victoria to proceed, so we took the decision not to participate in the national model and to exit the Victorian obligations under the COAG agreement, which was part of the seamless national economy stream of COAG reforms. That was not without cost to Victoria in terms of competition payments under the COAG model, but nonetheless it was a good decision for Victoria, and it is good to see that the current government has maintained that position in respect of the Victorian framework.

Just to turn to some of the specifics of this bill, which I will go through fairly quickly and then get to a couple of issues that the coalition has concerns with, the bill updates the entitlement to payments for travel and accommodation by the family of people who are killed in workplace accidents. Of course that is something that the scheme and the entire WorkCover system are designed to prevent and avoid, but nonetheless from time to time fatalities do occur, and it is a feature of both the WorkCover scheme and the Transport Accident Commission (TAC) scheme that support is provided to the families of people who are injured or killed in workplace or transport accidents. This amendment seeks to put in place a similar level of support for people attending funerals of a deceased relative, as is currently available under the TAC scheme as a result of changes introduced by the previous coalition government. Likewise the bill provides for travel and accommodation expenses for family members to visit people who are hospitalised or severely injured in the course of a workplace injury.

In relation to the Dangerous Goods Act, the bill rewrites certain provisions regarding the clean-up, removal and transport of asbestos in emergency situations. With respect to the OHS act — and this is where the coalition does have some concerns — the bill seeks to change the framework with respect to bringing prosecutions under the OHS act. Currently the act provides that a prosecution must be brought within two years of an offence occurring or within two years of the authority, the Victorian WorkCover Authority (VWA), becoming aware of the offence, and any exceptions to those provisions require the consent of the Director of Public Prosecutions (DPP) to bring a prosecution.

What the bill seeks to do is to insert additional exceptions which will allow the VWA to undertake prosecution without receiving the consent of the DPP. It is not clear as to why those additional exceptions are being inserted in the legislation and the current mechanism — which has a two-year window from the incident or the authority becoming aware of it, with the rider that the DPP can provide consent outside that framework — is being changed or why the government is seeking to move from that model to having a range of additional exceptions which would allow the authority to undertake its own-motion prosecutions.

The other matters which the bill deals with in respect of the OHS act relate to extending the scope of notifiable incidents under section 37 of the OHS act, and this is given effect by clause 11 of the bill to include incidents where nurses and midwives are required to provide treatment in addition to the current requirement that where a doctor provides treatment an event is a notifiable incident. Of course a consequence of expanding the basis of notifiable incidents is that there will be more notifiable incidents given that the criteria is now broadened.

Therefore one of the things we need to be mindful of in future in comparing statistics on the level of notifiable incidents — and there is often a degree of debate around the level of notifiable incidents and what those trends mean — is that the fact that the criteria for defining notifiable incidents is being broadened, leading to more notifiable incidents, needs to be a central consideration in any future debate or discussion around trends on notifiable incidents, noting that with this change we will no longer be comparing like and like for some period of time.

The bill also clarifies the powers of inspectors with respect to asking questions and seeking documents in relation to occurrences in workplaces, and the key provisions that the coalition seeks to explore in committee and indeed will be seeking to amend relate to some new penalty provisions, offence provisions, which are being inserted or modified in relation to the OHS act. I would ask at this time if the coalition's proposed amendments can be circulated.

Opposition amendments circulated by Mr RICH-PHILLIPS (South Eastern Metropolitan) pursuant to standing orders.

Mr RICH-PHILLIPS — With respect to the offence provisions the bill seeks to do a number of things. The first is to create a new offence for the contravention of an enforceable undertaking under the OHS act. It is important to put on the record what an enforceable undertaking is. The provision of the OHS act, which provides for enforceable undertakings, is a civil provision which allows for an agreement to be entered into between an employer and the VWA — the Victorian WorkCover Authority — providing that the employer will undertake to do certain things. This will typically arise where deficiencies in a workplace have been identified, possibly through an incident, possibly just through an inspection. An agreement is reached between the authority and the relevant employer to typically undertake certain changes to that workplace. There are not a lot of enforceable undertakings which are entered into by the VWA. They tend to be listed in the VWA's annual report when such enforceable undertakings are entered into.

Current legislation provides a mechanism by which, by definition, an enforceable undertaking can be enforced where the party to that undertaking has not performed that undertaking. There is a mechanism in the legislation that allows for the enforcement of that undertaking. So it is not clear why the government is now seeking to muddy the waters with respect to the issue of enforceable undertakings by inserting a criminal provision creating a new offence for failing to deliver on an enforceable undertaking.

This provision does seek to move from what has been well recognised as a useful mechanism in the legislation, to have a civil arrangement between the authority and an employer to get an outcome, to muddying the waters by introducing a criminal element with the new offence of contravening an undertaking. This is something the coalition believes is a retrograde step for the operation of enforceable undertakings. Accordingly we will be seeking to amend the relevant provision in the bill, which is clause 10, to omit those penalty provisions and essentially to allow for enforceable undertakings to continue on in their current civil basis with the current mechanism which exists for those undertakings to be enforced where the counterparty has not in the first instance met their obligations.

The second area where the coalition has concerns is in relation to section 38 of the act — clause 12 of the bill — which is headed 'Duty to notify of incidents'. What the bill is seeking to do, for reasons which have not been explained in the second-reading speech from the government, is change the current obligation for an employer to notify the VWA of an incident to now make the failure of an employer to do that an indictable offence and to increase the current penalties in the act by a factor of four. In the case of a natural person this increases the penalty to a maximum of 240 penalty units, and in the case of a body corporate it increases the penalty to a maximum of 1200 penalty units. As I said, this is an increase by a factor of four. No justification has been given as to why the government is seeking to increase the penalties by that magnitude. I am advised that when this provision has been used, where prosecutions have been brought under this provision, penalties have been imposed by the court at the lower end of the current maximum. So there seems to be no basis for the government to now be seeking to increase those penalties by a factor of four when current prosecutions have not rubbed up against the maximum that is currently in place.

In a similar vein, proposed section 13 of the bill seeks to amend section 39 of the act, which is headed 'Duty to preserve incident sites'. The intent of clause 13 of the bill is similar to clause 12 in the sense that it seeks to make the failure to preserve an incident site an indictable offence, where currently it is not, and it seeks to increase the penalties for failure to preserve an incident site by a factor of four — again to 240 penalty units for a natural person and 1200 penalty units for a body corporate. Again there seems to be no evidence to suggest that the current level of penalty is preventing the courts imposing appropriate penalties when these offences occur. There is only a very small number of offences which have been prosecuted against this provision, and where that has occurred, it has not resulted in the courts being constrained by the current level of maximum penalties. So the reason for increasing penalties by a factor of four is not at all clear from the second-reading speech and is not clear from any of the commentary that the government has made to date. So that is a matter that we will be seeking to explore in the committee stage of the bill.

It is the intention of the coalition parties to propose amendments which will, in relation to clause 10 — enforceable undertakings — omit the proposal to introduce a penalty, an offence, for failing to complete an enforceable undertaking, and it is our intention at clauses 12 and 13 to omit the changing of those offences to indictable offences and to omit the intention to increase the penalties by a factor of four. We believe that the current penalty frameworks are appropriate. The current prosecution history of these offences demonstrates that there is no deficiency in the level of penalties that are available to the court, and we believe that the current level of maximum penalties is an appropriate way for the legislation to go forward. With those few words, we look forward to exploring those matters and those amendments in committee. The coalition will not be opposing the rest of the bill.

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