Second Reading — Cognate Debate

Resumed from 23 August.

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [2.36 pm]: I rise as the lead speaker for the Greens on the Occupational Safety and Health Amendment Bill 2017 and the Mines Safety and Inspection Amendment Bill 2017, which are being dealt with cognately. These fairly straightforward bills that we are debating today will increase the penalties for offences under both the Occupational Safety and Health Act 1984 and the Mines Safety and Inspection Act 1994 to better align with the penalties in the model Work Health and Safety Act, including a further increase for inflation since 2010. We have waited a very long time—far too long, I would suggest—to have these particular amendments presented to us. On that comment, I think it has taken too long for this government to bring on these bills, but I am not going to excuse the fact that the previous government did not bring them on at all. I am glad that we are finally dealing with them now, and not before time.

The Greens have long fought for better protections for workers and we support measures such as these, which we maintain will clearly progress this aim. I note that the increase in penalties is an interim measure until the Ministerial Advisory Panel on Work Health and Safety Reform completes the work it is doing on the new WA work health and safety bill. I note from public briefings on that process that we are looking at a far more comprehensive set of reforms that this chamber will potentially have the opportunity to debate at about this time next year. I am pleased that the process being undertaken seems to be quite comprehensive. I note that the scope of the new legislation is considerable. I say at the outset that I hope that the regulations proposed to sit under the new legislation can be completed and produced for scrutiny, hopefully, simultaneously with when that bill is proposed. I think a lot of the detail will be within that regulatory framework, and that will help to give us some clear idea of what is being proposed. In any event, the delay to date in adopting the model legislation was completely unacceptable. Western Australian workers are currently at a disadvantage compared with the rest of the country, bar Victoria. We are pleased that this government is at least expediting the process.

The Occupational Safety and Health Amendment Bill 2017 and the Mines Safety and Inspection Amendment Bill 2017 will increase all penalties for offences under their respective acts, but will retain the current maximum penalties that can be imposed for offences under the regulations. The bills make no other changes to the current acts; they relate only to the issue of penalties. The current acts contain four levels of penalty, based on the type and severity of the offence, from lowest to highest. Level 1 is a breach of the acts, excluding general duty provisions or regulations. Level 2 is a breach of the general duty provisions of the acts that do not result in serious harm or death. Level 3 is a breach of the general duty provisions of the acts that result in serious harm or death. Level 4 is a breach of the general duty provisions of the acts in circumstances of gross negligence that result in serious harm or death.

General duties are the broad duties of care. For example, they are about providing and maintaining workplaces, plant and work systems that, insofar as practical, prevent employees from being exposed to hazards, and providing information, instructions, training and supervision of employees so that they are not exposed to hazards, and consult and cooperate with any safety and health representatives and other employees on occupational safety and health. If it is determined that hazards cannot practicably be avoided, employees must have free personal protective clothing and equipment. Employers must ensure, insofar as practical, that methods for the use, cleaning, maintenance, transportation and disposal of plant, and the use, handling, processing, storage, transportation and disposal of substances do not expose employees to hazards.

Under the Occupational Safety and Health Amendment Bill 2017, level 1 penalties will be aligned to category 3. They will increase by 14 per cent to reflect consumer price index increases since the model act. I take the previous member’s point that since this bill was first read in this place, it could well be that we are already behind in the CPI increase. It will also be rounded up. Level 2 will align to category 2, and will also be increased by 14 per cent and rounded up. Level 4 aligns to category 1, and will also be increased by 14 per cent and then rounded up. The period of imprisonment will also increase. Level 3 will align to a point midway between categories 1 and 2, and will be increased by 14 per cent and rounded up.

The current model Work Health and Safety Act does not have different penalties for first and subsequent offences. The Occupational Safety and Health Amendment Bill 2017 deals with that by aligning the model work health and safety penalty to the act’s subsequent offences penalty. The first offence penalty is set at 80 per cent of that figure. The current act also contains some other penalties not set by the level, such as breaches of duty by employees and the duty to report certain things, the duty to provide certain information to safety and health representatives, and continuing offences. These penalties have been quadrupled to the same as a level 1 first individual offence under the act.

All the penalties in the Occupational Safety and Health Amendment Bill 2017 are maximum, not mandatory, penalties. As usual, the sentencing court will be able to exercise its discretion on the penalty in each case before it. The sentence imposed may well be lower than the penalty in the bill if the magistrate is of the opinion that that is how justice will best be served; the bill just increases the maximum. But over time increasing penalties will probably push up the sentence imposed.

I will provide a bit of background on how we came to where we are today. In 2011, Safe Work Australia developed a model Work Health and Safety Act under the Inter-governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety. The idea at the time was to harmonise work health and safety in all jurisdictions. Other Australian jurisdictions—apart from Queensland and Victoria, which have implemented it only to general industry—have already implemented their versions of the model Work Health and Safety Act for their mining industries in particular. There are some differences in penalties between the jurisdictions.

I note that the former government was developing a work health safety (resources and major hazards) bill. The provisions were the subject of a decision regulatory impact statement and were discussed extensively at the time with stakeholders. However, that bill did not reach Parliament before the end of the thirty-ninth term. As I have said, the current government, through its Ministerial Advisory Panel on Work Health and Safety Reform, is developing a work health and safety bill. It is a single bill for Western Australia that is going to amalgamate the general industries as well as the resources sector with regulations for specific industries. In the meantime, while that important work is being undertaken, current penalties in the Mines Safety and Inspection Act still have not increased since 2004 and are considered to need updating. That is because we need to increase the incentive to comply with workplace safety laws to ensure that penalties meet community expectations. I do not think we should underestimate how critical that component is. I speak frequently with families of workers who have been seriously injured or killed and they express to me their extreme distress at how poor the penalties are and how they feel it is a slap in the face for their families and the memories of their loved ones. It is essential to highlight the importance of maintaining a safe workplace and I think it is really critical that we ensure that we are consistent with other Australian jurisdictions.

Aside from the penalties in the act, there is a process called an enforceable undertaking. Instead of an offender paying a fine for minor offences in circumstances in which no-one was harmed, a court can, at its discretion, allow the offender to undertake specific actions aimed at improving occupational health and safety. The cost generally corresponds to the fine that would otherwise apply. A breach of the undertaking attracts both the original penalty plus an extra penalty for noncompliance with the undertaking. I note that there is currently a proposed amendment to the bill in front of us and I say very clearly that the Greens are big fans of enforceable undertakings. In fact, when I introduced my piece of legislation back in the thirty-eighth Parliament to amend the Occupational Safety and Health Act, I included enforceable undertakings because they are a very, very useful tool to assist in creating safer workplaces. They are particularly effective for smaller workplaces where it does not augur well to impose a penalty that will effectively mean that workers could potentially lose their jobs; it may not serve any purpose to shut down an entire workplace. Although I am very supportive of enforceable undertakings, and the government is currently contemplating them in the proposed new laws, I am not sure whether its amendment sits within the scope of this bill. I am aware that advice will need to be provided about whether the amendment can be contemplated within the scope of this bill, even though the Greens are very supportive of the principle of enforceable undertakings.

It is really important that we introduce increased penalties for breaches of occupational safety and health matters. They are still an incredibly important issue in Western Australia. On average, one person is fatally injured in a Western Australian workplace every 19 days. People are still dying at work. We in this place need to remember that, tragically, this number has remained relatively stable over the last 16 years. In 2016, which are the most recent figures that we have, 20 people lost their lives at work. That number is worse than the long-term average. Given the lack of progress we have made on reducing the number of workplace fatalities, it is clear to me that reform in this space is critically needed.

Penalties are certainly one part of an effective safety and health system, although, of course, more can always be done. Whenever the issue of penalties comes up, I hear from certain sectors of the community—most notably the Chamber of Commerce and Industry of Western Australia—concerns about what they refer to as the stick approach to occupational health and safety. They say overtly that we need to focus on the carrot by providing incentives to create safe workplaces. I would respond by saying that although occupational health and safety certainly benefits from the carrot approach, we need the stick as well. We need the classic carrot and stick approach.

The member who has just spoken referred to the importance of culture in creating safe workplaces. I could not agree more. One way in which the culture around workplace safety can be improved is by increasing the penalties that will apply if a safe workplace is not provided. I note that in the mining industry, for example, the cultural regime around workplace safety has improved markedly, although we are still not there yet. However, that is not the case in other industries. I single out in particular the construction industry, in which there are far too many incidents that could, and should, be easily avoided. People should not be killed at their workplace. The reality is that for many industries, workplace safety is a very serious and real matter, and much work still remains to be done.

A number of voices in both this place and the other place often carry on about the more militant unions, in particular the Maritime Union of Australia and the Construction, Forestry, Mining and Energy Union, and suggest that those unions do not play any sort of productive role within our workplace culture. I would argue that the exact opposite is the case. The hard work of those unions and of their members in standing up for their rights has ensured that some progress has been made on workplace safety. Our wharves have historically been dangerous places in which to work. I am glad that the MUA has done so much work to ensure that the wharves are now much safer. However, there is still a long way to go. It is a constant battle, particularly because of the competition among employers in pursuit of profit. Therefore, it is critical that unions are able to continue to do that work.

I have said previously in this place that the sorts of penalties we are contemplating today are only one part of the approach that we need to take on this issue. I remind members again that industrial manslaughter legislation is another key strategy for increasing safety, and I am hoping that we will eventually bring it into law in this state. Members will recall that, in June last year, I introduced a bill to include the offence of industrial manslaughter in the Criminal Code, and to ensure that the penalties for this offence mirrored the existing manslaughter provisions.

Passage of the Criminal Code Amendment (Industrial Manslaughter) Bill 2017 would mean that senior managers could be liable if they knowingly make decisions that allow unsafe workplaces to exist, and those decisions ultimately result in fatalities. That would mean that those senior officers could be prosecuted. I note that the need for the introduction of criminal offences to improve workplace health and safety, and their role as deterrents, was identified in the “National Review into Model Occupational Health and Safety Laws: First Report” as far back as 2008. That review found that making noncompliance with duty of care a criminal offence not only reflects the seriousness with which such conduct is regarded, but also reinforces the provision’s deterrent effect. Importantly, industrial manslaughter in the Criminal Code is just one component, and other elements could be considered. The bill I have in front of the Parliament at the moment includes such elements as adverse publicity orders, orders for restoration, work health and safety project orders, occupational health and safety undertakings, injunctions and training orders. This suite of penalties could be applied in addition to the increased penalties we are talking about today. This would not only mean that employers are accountable by way of penalties, but also require them to make changes to their workplaces to ensure that they are safer.

I will also make a point about the importance of adequately resourcing our inspectors to ensure compliance, noting that Parliament is currently conducting an inquiry into the resourcing of WorkSafe. Stronger penalties will be truly effective only if WorkSafe is adequately resourced to investigate work accidents and breaches of the law, as part of the new department. We know that the previous government slashed the number of workplace inspectors by almost 10 per cent, along with other support positions, which further diminished the capacity of inspectors to do their jobs effectively. We will need to see some significant turnaround in the resourcing of these areas.

On that note, I again confirm that the Greens absolutely support these two bills. Western Australia has a lot of catching up to do in occupational health and safety. I look forward to seeing the government’s new bill, hopefully next year, and I hope we can simultaneously look at the proposed regulations, so that we can see the entire package that is being proposed. I also look forward to seeing the government back up its legislative changes with increased funding to ensure that the legislation is able to be implemented well, and I hope that this government decides to be serious about other pieces of legislation, such as my bill, and gives them due consideration, so that we can ensure that we have some of the safest workplaces, if not the safest workplaces, in the country.

[Speeches and comments from various members]

Questions put and passed.

Bills read a second time.


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