Debate resumed from 3 September 2009.

Mr ANTHONY ROBERTS (Lane Cove) [4.27 p.m.]: The Coalition will not be opposing the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009. The purpose of the bill is to clarify the definition of "authorised representative" in the Occupational Health and Safety Act 2000 following a recent court decision of which many members in this House would be aware that blurred the accepted position and practice regarding who may enter a workplace and perform health and safety functions as an authorised representative of a trade union.

Further, the bill seeks to maintain consistency with Federal occupational health and safety laws and what has been endorsed in the National Review into Model Occupational Health and Safety Laws in 2008 and 2009 and the Workplace Relations Ministerial Council. The bill validates entries and inspections carried out under the Occupational Health and Safety Act prior to the commencement of the amendment, which would be valid as a consequence of the amendment, with that validation flowing on to other Acts relying on definitions of "authorised representative" in the Occupational Health and Safety Act, including the Coal Mine Health and Safety Act 2002.

Custom and practice in New South Wales enable officials and employees of trade unions to exercise occupational health and safety powers in workplaces provided they hold the relevant permit from the industrial registrar and satisfy the industrial registrar that they are a fit and proper person to hold such a permit. A recent decision in the Federal Court gave strict interpretation to the definition of "authorised representative" as enabling officials of trade unions, but not employees holding an appropriate permit from the industrial registrar, to exercise occupational health and safety powers in workplaces.

It is expected that a draft national occupational health and safety bill will be released for public consultation later this year, which will harmonise union rights of entry across the nation to allow both officials and employees of trade unions to enter and to exercise occupational health and safety powers in workplaces. The amendment is consistent with the position endorsed by the National Review into Model Occupational Health and Safety Laws and the Workplace Relations Ministerial Council, and will be incorporated into the draft National Occupational Health and Safety Bill. I understand that will be released for public consultation later this year.

The bill makes no changes to union right of entry, other than to clarify who is an authorised representative of a union. The usual notice periods and rules concerning union entry will continue to apply. Occupational health and safety is an important tenet of our industrial practices in this State. It should be acknowledged. It is also something that we worked on extensively in our time in Government, and we continue to work proactively with the current Government. Consequently we welcome this change. It has been a while coming. We will continue to monitor changes with respect to occupational health and safety in New South Wales. The Liberal-Nationals Coalition will not oppose the bill.

Mr ROBERT FUROLO (Lakemba) [4.31 p.m.]: I am pleased to speak in support of the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009. I am sure all members will agree that workplace safety is a matter of great concern to all of us. The New South Wales occupational health and safety legislation acknowledges the important role of workers, unions and industry in making workplaces safe; for example, by requiring employers to consult with workers and their representatives when assessing the risks to health or safety of workers and when making decisions about measures to eliminate or control those risks. Occupational health and safety legislation recognises that workplace safety is not just the role of one party, but requires all people with occupational health and safety obligations at a workplace to discharge their obligations in a coordinated manner.

Authorised representatives are one of the parties with an important role under the New South Wales occupational health and safety legislation. Since 1983, the occupational health and safety legislation has provided for authorised representatives to exercise rights of entry to workplaces to support the role of inspectors in ensuring that employers understand their occupational health and safety obligations. However, in June this year, the Federal Court held that Construction, Forestry, Mining and Energy Union officials did not have a right of entry under the New South Wales Occupational Health and Safety Act 2000 to enter the desalination plant at Kurnell because they were not "officers" of the union within the meaning of the Act. The effect of the decision was that only elected officials of unions could be appointed as authorised representatives under the Act. Before this decision it was accepted that both elected union officials and union employees could exercise right of entry under occupational health and safety legislation.

The bill amends the Occupational Health and Safety Act 2000 to restore the previously accepted position, which is also consistent with the New South Wales Industrial Relations Act 1996. The bill will ensure that authorised representatives can continue to exercise their powers to enter workplaces for occupational health and safety reasons. The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 reinforces the role of authorised representatives in making workplaces safe by ensuring that properly authorised union officials are able to enter New South Wales workplaces for the purpose of investigating any suspected breach of the occupational health and safety legislation. It makes clear the legal position that was thought to exist for many years, prior to the recent Federal Court decision. By continuing to allow right of entry to New South Wales workplaces to authorised representatives, both employees and elected officers, the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 will allow unions to continue their important role in making New South Wales workplaces safer. I commend the bill to the House.

Mr MIKE BAIRD (Manly) [4.34 p.m.]: We understand and support the tenets of the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 but the bill raises a general question about occupational health and safety and the way it has been dealt with in this State. We certainly understand the object of the bill, which is to clarify the definition of "authorised representative" in relation to the Occupational Health and Safety Act 2000. For many years officials and employees of trade unions have entered workplaces to carry out health and safety inspections. However, a recent Federal Court case applied the strict interpretation of that law that only officers of the union, and not employees, had right of entry. The bill in essence restores the previously accepted position. It also maintains consistency with the Federal occupational health and safety laws and what importantly has been endorsed by a recent national review and the Workplace Relations Ministerial Council.

However, there is an overriding concern because the reform of the occupational health and safety system has been on the agenda in this State for a number of years. Upholding safety in the workplace is imperative and indeed the recent work in relation to the national system is moving towards that. However, businesses in this State have been unfairly punished by a draconian occupational health and safety regime that has put them at a disadvantage in relation to their competitors and made New South Wales a very difficult place to do business. It is worth putting on the record some of the features of the New South Wales system and encouraging the Minister to add to the reform contained in the bill the reforms proposed by none other than the Government. I will refer to the report that has been mentioned.

A draft national bill is expected to be approved by a ministerial council later this month. All States except Western Australia have agreed that there is a case for a national system. This will slash red tape for businesses and allow them to be more productive. At the same time it will ensure a critical balance so that workplaces are made safe. I point out there are some distinctive features in the New South Wales system that put it very out of step with Victoria, which probably has the best legislation. In New South Wales, unions have the power to prosecute. This is contrary to the widely observed principle of criminal law that a prosecutor must be independent, unbiased and free of any conflicts of interest. Only New South Wales and the Australian Capital Territory have that provision in their Acts.

The Victorian Maxwell review of 2003 strongly recommended against anyone other than the relevant authority having the right to prosecute. It said, "The prosecution of persons for criminal offences is a matter of the utmost seriousness. It is in my view properly the exclusive function of the State and should be performed by a State agency, whether a Crown prosecutor subject to the DPP or a prosecuting authority." New South Wales is the only jurisdiction where moieties apply. Under this system, unions can keep half the fines from successful prosecutions they initiate. I have referred to the conflict in unions prosecuting cases. Not only do they prosecute cases, but they receive half of any fines that are imposed. That sort of conflict goes against the essence of what we are trying to do. It goes well beyond a desire to keep workplaces safe. It becomes a fee-generating exercise for vested interests. It goes against the very essence of what this legislation should be about.

New South Wales and Queensland are the only jurisdictions in which industrial courts—the Industrial Relations Commission—hear occupational health and safety matters. They are also the only jurisdictions in which there are no rights of appeal beyond that forum. It is worth noting that having no right of appeal runs counter to the principles of democracy. No-one, other than the two jurisdictions I have mentioned, has this provision. Also, in New South Wales, and again in Queensland, the normal onus of proof provision in criminal matters is reversed. The New South Wales Government recently indicated it would consider removing the reverse onus provision from prosecutions against individuals but retain it for corporations. Again, the required reform is not being carried out.

It has been well stated that the occupational health and safety legislation is putting a huge burden on business and is making New South Wales uncompetitive. It is making day-to-day business activity very difficult. This is not about safety; every business one talks to is concerned about safety. It is about a regime that oversees legislation that is not about safety but about other matters. The Government has said it understands that the system should be fixed. The New South Wales Government released a report on the Occupational Health and Safety Act 2000 in 2006. That is what the Iemma Government said at that stage.

In May 2006 the New South Wales Government released a draft Occupational Health and Safety Amendment Bill, which included the following proposed amendments: adjustment of the duty on employers of a reasonably practicable test, in line with other jurisdictions; introduction of an additional duty on employees to take reasonable care for their own health and safety, when currently their duties extend to only other employees; clarification of directors' duties to ensure that an officer of a company will be liable only if they fail to take reasonable care to prevent occupational health and safety risks, rather than simply be concerned with the management of the enterprise; elimination of the rights of prosecutorial appeal against acquittals, in line with general criminal law principles; introduction of enforceable undertakings by which employees would agree to rectify alleged contraventions, in return for which WorkCover cannot then prosecute for that breach; introduction of the ability of WorkCover inspectors to provide written advice on compliance strategies; and elimination the right of WorkCover to appeal acquittals.

The New South Wales Government ultimately decided not to proceed with any of those reforms. The real question is: Why not? I want the Minister to reply to this question. Why are we not standing up for the reforms that have been identified by the Government's own review, to take some of the onuses and unfairness out of the system and give businesses in this State a level playing field? That is what we are looking to achieve. We have heard that there is a commitment to sign up to a national framework. If that is so, why have we had to wait so long to get to that point—when this report came out in May 2006?

The Government also commissioned a report by retired Judge Paul Stein, which recommended reforms to the Act, including the introduction of a reasonably practical test. This report also has not been acted upon. Whilst we on this side acknowledge that the bill has a very small amendment that makes some sense in the context of the bill overall, we ask very strongly: Why has the Government not acted on some of the reforms that are proposed in its own report? I look forward to hearing what the Government and the Minister have to say in response to the question. Certainly, members on this side of the House strongly urge expedition of an occupational health and safety policy that is directed at a national framework and gives businesses in this State a chance to operate on a level playing field, at the same time ensuring that safety is maintained.

Mr DAVID HARRIS (Wyong—Parliamentary Secretary) [4.42 p.m.]: I will speak briefly to the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009, which I am pleased to support. Properly authorised union officials, otherwise known as authorised representatives, have long had an important role in workplace safety under New South Wales Occupational Health and Safety legislation. The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 maintains that role, while also maintaining the necessary checks and balances to ensure that statutory powers are properly used. While under New South Wales occupational health and safety legislation authorised representatives have a right of entry to workplaces, but that right of entry cannot be exercised unless the authorised representative is a fit and proper person authorised by the Industrial Registrar under the Industrial Relations Act 1996. Authorised representatives are also required to hold a permit under the Commonwealth's Fair Work Act 2009 in relation to workplaces to which that Act applies, and must also be fit and proper persons to be eligible for Fair Work Act permits.

The New South Wales Occupational Health and Safety Act contains notice requirements for entry to workplaces, and provides that right of entry can only be exercised at a reasonable time in the daytime. The authorised representative cannot exercise the powers of entry in relation to residential premises unless the occupier agrees. In certain cases an authorised representative may seek the assistance of a WorkCover inspector. The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 ensures that the previously understood definition for authorised representatives will continue to apply, while maintaining the above-mentioned checks and balances that are an important feature of occupational health and safety law in New South Wales.

Improving workplace safety has tangible outcomes for workers and their families, and in recent years significant progress has been made in reducing workplace fatalities and injuries in New South Wales. WorkCover's statistical bulletin provides a portrait of New South Wales occupational health and safety performance on a year-to-year basis. The 2007-08 bulletin indicates the number of fatalities has fallen by 41 per cent and the incident rate has declined by 62 per cent since the scheme commenced in 1987-88. Encouragingly, work-related fatalities for persons under the age of 25 years declined by 37 per cent from 2006-07. New South Wales remains on track to meet the national target of a 20 per cent reduction in work-related fatalities by 2012.

Each year I go to the Construction Forestry Mining Energy Union's Central Coast Wall of Remembrance memorial for those who have passed away as a result of injury in the workplace. While statistics are important, they reflect people who are part of families, and it is important that we do all we can to ensure that more families do not lose loved ones who do not come home after work. The rights of authorised representatives to enter workplaces for occupational health and safety purposes are an important feature of the occupational health and safety framework. Authorised representatives play a vital role in educating employers and employees about occupational health and safety, and make a significant contribution to the reduction of incidents in workplaces. The bill will ensure that this role continues. I commend the bill to the House.

Mr MICHAEL RICHARDSON (Castle Hill) [4.46 p.m.]: The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 is ostensibly a very straightforward bill. It seeks to amend the Occupational Health and Safety Act to clarify the definition of "authorised representative". The move follows a Federal Court decision that affects the ability of these so-called "authorised representatives" to enter workplaces on occupational health and safety related matters. As is usual with these sorts of matters, it is a little more complicated than that. This was illustrated in the court case of John Holland Pty Ltd v The Construction, Forestry, Mining and Energy Union.

Apparently, a couple of union heavies visited the desalination plan in Kurnell on 12 September 2007 and drove straight past the security guard, ignoring her instructions to stop. They left soon afterwards. But on 18 September 2007 they returned, this time in a dark blue sedan. The driver, Peter Primmer, said that they were from the CFMEU and had "come to inspect the site". The passenger, Scott Wilcox, held up a yellow laminated card and told Ms Williamson, who was at the gate, that this gave them authorisation and "even the police can't stop us". While the security guard was phoning for advice, the vehicle sped off in the direction of the site office.

Mr Cotts, the site superintendent, asked for a right of entry permit and mentioned that 24 hours notice was required. Mr Primmer said he was not required to give notice because it was an "occupational health and safety issue". Scott Wilcox asked for the company's "Safe Working Method Statements". When this request was refused, he said that the company was "in breach of the Act". Mr Cotts explained that he needed authorisation from someone senior to him to comply with their requests. That authorisation was not forthcoming and the union officers were told that if they had not left the site by 10.30 a.m. the police would be called.

Stephen Sasse, Group General Manager, Human Resources and Organisation Strategy for John Holland, called the CFMEU offices and asked to speak to the State Secretary, Andrew Ferguson, but he was not available. I note that the company is supposed to be available at all times, but the CFMEU's officers are available only when they want to be. At about 10.50 a.m. Peter Primmer told Mr Cotts that he intended to contact WorkCover, Mr Ferguson, the police and Mr Della Bosca. Mr Della Bosca probably would not want to be contacted right now, but at the time he was the Minister for Industrial Relations. That did not work. Cronulla police were called and shortly after this Ms Williamson observed the union organisers' vehicle leaving the site.

Later in the day two inspectors from WorkCover attended the site and held a discussion with Peter Primmer and Scott Wilcox outside the premises. Under section 83 of the Occupational Health and Safety Act, union "authorised representatives" can request assistance from an inspector, although it is interesting to note that at this stage, as is borne out by the court judgement, neither Mr Primmer nor Mr Wilcox was an authorised representative. In other words, the inspector should not have been there with the union representatives. The inspectors were invited onto the site—that is entirely appropriate—but the union organisers were denied entry because they had not revealed the nature of the safety breach or which employer was involved. As I understand it, two companies are involved in the construction of the desalination plant.

Scott Wilcox refused to give the inspectors these details, saying that it was confidential information. The union representatives left the front gate area at about 3.10 p.m. The inspectors left 10 minutes later and did not enter the site, as the safety concern was not identified. In other words, no safety issues existed and could only have been fabricated. On the evening of 18 September 2007 Mr Rick Bultitude, head of the Construction Inspectorate of WorkCover (New South Wales), discussed the incident at the site with Mr Sasse to see if a compromise could be reached. Mr Sasse explained that there was no code compliance by the union organisers and mentioned that the inspectors were welcome to visit the site at any time.

The following day Mr Bultitude told Mr Sasse he would be sending two of his inspectors to the site. On 20 September 2007 Mr Sasse received a letter from Mr Noonan, national secretary of the Construction, Forestry, Mining, and Energy Union rejecting Mr Sasse's assertion about illegal entry of the union organisers. On 25 September a letter arrived from Mr Ferguson rejecting the assertions that the union or its officials had breached the law. On 12 October 2007 Mr Sasse attended a meeting convened by Sharan Burrow of the Australian Council of Trade Unions, and attended by representatives of the union, including Mr Ferguson. The union proposed a protocol for exercising entry to the Kurnell premises. Mr Sasse rejected this suggested protocol in a letter of 14 October 2007, which explained that judicial interpretation would be necessary to resolve the issue.

The key is that the Occupational Health and Safety Act does not contain a scheme for issuing permits or authorities to facilitate entry. Instead, it relies on the process of authorisation under the Industrial Relations Act. Under section 76 of the Occupational Health and Safety Act an authorised representative of an industrial organisation of employees means an officer of that organisation, including any person who is concerned in, or takes part in, the management of that organisation, who is authorised under part 7 of chapter 5 of the Industrial Relations Act 1996. Under part 7 the Industrial Registrar can issue an instrument of authority to two classes of representatives of an industrial organisation: officers and employees. "Officer" was specifically defined to include "any person who is concerned in, or takes part in, the management of the organisation" and "employee" was widened to include "any person who is concerned in, or takes part in, the management of the organisation". The court held that when the Occupational Health and Safety Act was passed, Parliament chose to limit the class of representatives of an industrial organisation who could exercise a right of entry under the Occupational Health and Safety Act to officers.

Under the rules of the Construction, Forestry, Mining, and Energy Union the officers of the construction and general division shall consist of divisional president, divisional secretary, two divisional assistant secretaries and divisional management committee members, together with such organisers as may be deemed necessary and as the divisional council or divisional management committee from time to time determine. The judgement in John Holland Pty Ltd v Construction, Forestry, Mining, and Energy Union continued that under section 81 of the Occupational Health and Safety Act "the right of entry appears, as a generalisation, to be conferred only for a less straightforward purpose, namely, investigating suspected breaches of occupational health and safety legislation, which can involve making searches and inspections, including taking photographs and inspecting and copying them." Justice Moore stated:

One can understand that in relation to this purpose, Parliament intended to limit the class of individuals to those who have a more substantial connection to the industrial organisation than simply being employees. Their status within the industrial organisation must be that of officer.

The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 seeks to overturn that decision and give any employee of a union the same right of entry to a workplace as an officer or organiser of the union being classified as authorised representatives. Section 77 "Powers of entry of places of work" of the Occupational Health and Safety Act states:

An authorised representative of an industrial organisation of employees may, for the purpose of investigating any suspected breach of the occupational health and safety legislation, the Coal Mine Health and Safety Act 2002 or the Mine Health and Safety Act 2004, enter any premises the representative has reason to believe is a place of work where members of that organisation (or persons who are eligible to be members of that organisation) work.

They do not have to be members of the union. Those provisions are pretty far reaching, but do not go so far as to say that any union employee can enter any workplace that he or she believes contains employees who are eligible to be members of the union on the basis of a suspected breach of the occupational health and safety legislation. That will come about only when this legislation is passed. Not only will the new law apply to future entry to workplaces, but also it will be retrospective, to use the words of the Minister, "to ensure that any powers exercised by authorised representatives before the commencement of the amendment are valid." I am aware of what most members think about retrospective legislation.

The Coalition supports occupational health and safety. We understand the role unions play in maintaining the safety of workplaces. However, as the member for Manly said in his contribution, we are out of step with what is happening elsewhere in Australia. In this State, unions have the right to prosecute workers for alleged occupational health and safety breaches and, of course, keep half the amount of a fine imposed in a successful prosecution. Not only does the existing legislation presume against the employer, but also a success fee is paid to unions for a successful prosecution. Through that provision this bill will facilitate increased litigation.

We believe and, indeed, as John Holland told the court in the case that pre-empted this legislation, the role of WorkCover inspectors is welcomed, as are their site visits. Not every employee feels the same about WorkCover inspectors. Recently I received a complaint from an employer of a medium-sized manufacturing company in my electorate who said, "An inspector can walk in here, look around, find absolutely nothing and charge me $550 for the privilege." The Government needs to address that issue because we are facing difficult economic times. I do not believe even this Government can obfuscate the fact that economic conditions are not as good as they were a couple of years ago. Putting in place such charges when absolutely nothing has been proven while not improving occupational health and safety one iota does not seem to be an ideal way to encourage business to operate in this State. It certainly does not help businesses compete when they are exposed to global markets.

Of course, this legislation is supposed to be nationally harmonised with other States. The Minister went on to say that he anticipated that a draft national occupational health and safety bill would be released for public consultation later this year. I guess he is not just anticipating that the bill will be released for consultation; he is also anticipating its contents. It is interesting to note that the right of entry provisions for unions contained in this bill are not necessarily consistent with the Rudd Government's own literature regarding the Fair Work Act. The Rudd Government's Fair Work Act states that a union official must hold a valid right of entry permit issued by Fair Work Australia; the permit holder must give at least 24 hours notice before entering the workplace and must set out the basis on which he or she has entry rights, including by referring to the relevant parts of the union's rules that give the union the right to represent their employees; that person can enter the workplace only if they have reasonable suspicion that there has been a breach of the fair work bill; and they must comply with any reasonable requests from an employer that discussions or interviews take place in a particular part of the premises and they take a particular route to reach that location.

In other words, they cannot take a circuitous route just to spy on what the employer is doing. That is very different from the provisions of the New South Wales Occupational Health and Safety Act under which no notice will have to be given by union representatives or union employees before entering a workplace. As I said before, while the Coalition supports improved occupational health and safety measures, we are concerned at the possibility that this law could be used in an obstructive fashion to make life more difficult for employers who are coping with today's difficult economic environment.

Mr PAUL GIBSON (Blacktown) [4.58 p.m.]: I support the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009. This bill demonstrates the commitment of the Rees Government to preserving the right of entry provisions in New South Wales. I note that each Opposition member who has contributed to the debate has made a big issue of unions having a right of entry to workplaces. Why should they not? When we get up in the morning, our wives, our sons and daughters go out to work, and why should we not take every measure to ensure that they have the safest working conditions of anywhere in the world, thereby ensuring that we will see them again when they return from work? Members opposite have said that the legislation in Victoria is different, but that has nothing to do with legislation in New South Wales. The right of entry should be enshrined in legislation.

I cite the example of restaurants or hotels and health inspectors being empowered to inspect at any time—even at 12 o'clock at night—without prior notification and exercising that level of power in relation to the relatively minor matter of food. The right of entry provisions in the bill before the House are designed to ensure that workers' lives are looked after in the best possible way. The Opposition's argument against the right of entry is untenable. The Opposition suggests that the right of entry should be exercised in a manner that is separate and distinct from other inspectorial rights of entry, and that occupational health and safety inspectors should not be allowed to inspect business premises. Of course inspectors should have the right to look around premises. If a boss is doing nothing wrong, he or she will have nothing to worry about.

Members opposite expressed great concern about the actions of unions and accused unions of bullying. I am proud to have been a member of a union for nearly all my life—the National Union of Workers, which was formerly the Storeman and Packers Union. Without unions, no worker—including the sons, daughters and wives of members opposite—would have the conditions they enjoy today. When there are plaudits by members of Parliament, we should remember that unions have played a great role in building this nation. Yet members opposite still knock the unions. As I said earlier, I am very proud to be a member of a union, and I will be until the day I die.

This amending bill will bring New South Wales into line with national occupational health and safety laws that are currently being coordinated by the Commonwealth Government's Safe Work Australia. In July 2008, the Council of Australian Governments agreed to the harmonisation of occupational health and safety laws throughout Australia by signing the Inter-Governmental Agreement for Regulatory and Operational Reform. Under that intergovernmental agreement, all States, Territories and the Commonwealth Government made a commitment to work together to develop and implement model occupational health and safety laws as the most effective way to achieve harmonisation in Australia. Harmonisation of occupational health and safety laws will benefit both workers and industry.

An independent national review panel prepared two reports on the optimal structure and content of a model Occupational Health and Safety Act. The Workplace Relations Minister Council made decisions in relation to the recommendations of those reports in April this year, and a draft national model bill, which gives effects to those decisions, is being prepared. It is proposed that a national model occupational health and safety bill will be released for public comment in late 2009. Some of the key recommendations of the reports concern the role of union representatives in workplace safety. In particular, the reports recommend that the national model occupational health and safety bill should provide a right of entry for occupational health and safety purposes to union officials and/or union employees who are formally authorised for that purpose under the model Act.

To obtain authorisation, a person will be required to satisfy the authorising authority that, among other things, they have satisfactorily undertaken the required training and are a fit and proper person. Such authorised persons will have the capacity to inquire into suspected contraventions of the model Act or regulations and consult workers on occupational health and safety issues. They also will be able to provide advice to workers and consult with the person conducting the business or undertaking in relation to occupational health and safety issues.

The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 makes clear that in New South Wales authorised representatives, who are employees of the union, will be able to continue to exercise their occupational health and safety right of entry. By introducing this bill, the New South Wales Government is ensuring that New South Wales takes an approach that is consistent with the direction of national model occupational health and safety laws and will ensure, in the interim period until the national model laws can be enacted, that authorised representatives will be able to continue to play an important role in workplace safety. I fully support the bill. If a business or a boss is paying workers well and looking after them the way that workers should be looked after, they will have absolutely nothing to worry about. Earlier I mentioned unions, and I will conclude my remarks by saying this: all that unions have ever looked for is a fair day's work for a fair day's pay under the safest conditions possible. Surely that is not too much to ask.

Mr THOMAS GEORGE (Lismore) [5.04 p.m.]: The shadow Minister has indicated that the Opposition will not oppose the Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009. The objects of the bill are to ensure that any person who is an authorised industrial officer within the meaning of part 7, entry and inspection by officers of industrial organisations, of chapter 5 of the Industrial Relations Act 1996 in respect of an industrial organisation of employees is also an authorised representative of that industrial organisation of employees for the purposes of division 3, entry and inspection powers of authorised employees’ representatives, of part 5 of the Occupational Health and Safety Act 2000, and to provide that a person who was an authorised industrial officer but not an authorised representative before the commencement of the proposed Act is taken to have been an authorised representative, and to validate certain acts or omissions of such a person.

There would not be one member of Parliament who is not striving to ensure safe conditions in workplaces, but when occupational health and safety inspectors come onto a site there have been examples of a failure to work with people involved in the workplace. Only this week a plumber visited my electorate office and told me he had been engaged to replace roofing at a site following big storms that had hit Lismore. Scaffolding was provided by a local professional scaffolder. The plumber was on the roof and doing the job when suddenly an occupational health and safety inspector arrived at the site. The inspector examined the job, called the plumber and issued a prohibition order, which prevented the plumber from continuing his work. The plumber asked what was wrong with the work, and the inspector said, "It's not right. You'll have to get it fixed up." The plumber telephoned the professional scaffold supplier, who subsequently arrived at the site. The supplier provided a bit more gear and assured the plumber that everything was then all right.

The plumber returned to the roof to resume his work, but the occupational health and safety inspector again appeared on the site and prevented the plumber from continuing. He said, "No, that's not right. You've got to stop. My certificate is still in force." The plumber asked what was wrong with the scaffolding and the inspector replied, "It's not up to me to tell you that. You have to work that out." The plumber was completely prevented from continuing his work. The scaffold supplier had assured the plumber that the scaffolding complied with requirements of the Act and was confident that everything was as it should be. However, the occupational health and safety inspector said that the scaffolding was not right, and moreover would not provide any guidance in attempts to put it right. As members of Parliament, we must put a stop to that type of Gestapo approach. If a business person is in error, occupational health and safety inspectors should be prepared to work through the problems with them and recognise that a business person's livelihood is at stake.

It is not on for an inspector to arrive at a site and prevent work from continuing by simply saying that the procedures are not right. I would have hoped for a much more conciliatory and helpful approach by an inspector working with people from various walks of life in a workplace rather than the adoption of Gestapo tactics. I use the term "Gestapo" because I know of no more appropriate description of the approach the plumber complained of.

Mr Richard Amery: I do not think the Gestapo was into workplace health and safety.

Mr THOMAS GEORGE: It may be all right for the member for Mount Druitt to treat this lightly, but it is a different set of circumstances for business people in country areas. The plumber reacted by coming straight to my electorate office. My electorate office staff and I bore the brunt of someone's failure to explain what was wrong with the procedures so that the plumber could get back on track and finish the roof. The problem I have described is fairly typical of the problems that occur in relation to enforced compliance with occupational health and safety requirements on worksites.

I encourage occupational health and safety representatives to adopt a more conciliatory approach when they attend a worksite. If there is a problem, naturally we all want that to be addressed, but inspectors should work with business people to try to resolve problems rather than simply issuing a certificate and walking away saying, "When you get it right, ring me up and I'll come back and check it." That is hardly a satisfactory approach. People should work together to resolve problems and to keep jobs going. After all, an employer's livelihood is at stake, and there would not be one person who is not in favour of safe working conditions. In conclusion, I reiterate that the Opposition will not oppose the bill.

Mr JOSEPH TRIPODI (Fairfield—Minister for Finance, Minister for Infrastructure, Minister for Regulatory Reform, and Minister for Ports and Waterways) [5.09 p.m.], in reply: I thank members for their contributions to this debate. The Occupational Health and Safety Amendment (Authorised Representatives) Bill 2009 is needed to address an anomaly in the legal interpretation of the New South Wales Occupational Health and Safety Act 2000 that has arisen as a result of the Federal Court decision. This decision differs from the custom and practice in New South Wales, which has been that union employees, even if not elected as officers of a union, have been allowed to have a right of entry to workplaces for health and safety purposes. It appears that this challenge is the first of its kind, despite the definition being in place since 1996 in the previous legislation and carried over to the current legislation.

The amendments contained in this bill are also consistent with the position of the New South Wales Government throughout the national harmonisation process. We acknowledge the important role played by workers, employers and unions in making workplaces safe. This bill makes it clear that employees of unions, as well as union officials, have a right of entry to workplaces in order to investigate any suspected breach of the New South Wales occupational health and safety legislation. The bill reinstates the previously understood legal position and validates actions taken by union employees under the Occupation Health and Safety Act. I commend the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.