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- 7 June 2005
Occupational Health and Safety Amendment (Workplace Deaths) Bill
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Page: 16492
Second Reading
Debate resumed from an earlier hour.
Ms KATRINA HODGKINSON (Burrinjuck) [8.58 p.m.]: The Occupational Health and Safety Amendment (Workplace Deaths) Bill is unnecessary, and the Opposition continues to oppose it. The bill will amend the Occupational Health and Safety Act 2000 to make it an offence for a person who owes a duty under part 2 of that Act to engage in reckless conduct that causes death at a workplace. I will concentrate on the term "reckless conduct" a little later in my presentation, a matter dealt with most adamantly by the honourable member for Lachlan earlier this evening when speaking to this very same bill.
The bill amends the Criminal Appeal Act 1912 to provide for a right of appeal to the Court of Criminal Appeal when a person has been convicted and sentenced to imprisonment by the Industrial Relations Commission in Court Session for the proposed new offence. The Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill was strongly opposed by the Coalition, the business community and farmer organisations. Our position was declared publicly in December 2004 and reaffirmed in January 2005. Since then the Government has drastically amended the bill to remove many of its extremely objectionable features. But the bill continues to deny trial by jury and allows the Industrial Relations Commission to sentence offenders to gaol for up to five years. Probably no bill has caused such hysteria in my electorate as the Occupational Health and Safety Legislation Amendment (Workplace Fatalities) Bill.
In December last year the Opposition held a summit and invited key industry leaders. At the time the business community was so outraged that the summit was extremely well attended. It was organised by the honourable member for Gosford and the then shadow Minister for Commerce, Chris Hartcher. The response to the bill from industry and employee groups across the State was overwhelming. We recognise that the bill has been watered down significantly, but it continues to pose many concerns, particularly for those in rural areas. I commend the New South Wales Farmers Association for picking up on many of the more disparaging points in the bill. The association hosted many forums across the State, including two in the Southern Tablelands—Young and Yass. I attended the forum held by Jock Laurie and the industrial section of the New South Wales Farmers Association, which was held in Yass a couple of months ago. I commend Jock Laurie for his professionalism in his approach and presentation. Retailers and farmers attended the well-convened and well-attended forum. Subsequently, the Hon. John Della Bosca amended the bill.
When the workplace fatalities bill was introduced, I was approached by many different employers from different fields throughout my electorate and right across the State who were passionate about my representing them in this place. I have received literally hundreds and hundreds of letters on the bill and I will place a small smattering of them on the record. I received so many that I could not possibly read out the names and addresses of everyone who wrote to me, but I will outline some of the key concerns expressed by several of the organisations and individuals. I received a letter from the Charter Vessel Association of New South Wales located at 49 Countess Street Mosman, signed off by David C. Cribb, the Chief Executive. The letter stated:
Workplace fatalities have declined by 43 percent in the last 12 years (according to the WorkCover website); it is unlikely that sending people to gaol will increase this rate of improvement.
The IRC has been finding against employers consistently, even though injured employees have ignored their training and have bypassed safety barriers.
His letter explained in more detail that the Occupational Health and Safety (Workplace Fatalities) Amendment Bill significantly increases penalties for employers and managers, including gaol penalties, introduces rights of appeal to a higher court from the Industrial Relations Commission and continues to assume the employer and manager are guilty until they prove themselves innocent, which is very much the wrong way around. He went on to say that the consequences, according to the WorkCover web site, are that industrial fatalities have decreased by 43 per cent in 12 years, from 244 in 1988-89 to 139 in 2000-01, which is not a bad decrease. He questioned whether gaol sentences would increase this rate of decline and suggested that they would not. He asked what would happen to small businesses if the proprietor went to gaol and presumed that they would close down with other consequent loss of employment, which would be devastating. He asked what would happen to the dependants of the gaoled employer. The letter continued:
This measure will make NSW even less competitive compared to other States.
If this legislation became law, at least 139 persons pa could go to gaol for up to five years, at the current fatality rate, this means that up to five times the number would be away from the management ranks of businesses at any point in time, 695; that number could well be over 1,000 and more than one from any employer might be convicted.
About 20 people die in NSW each year on the railways, three Waterfalls every year! As a consequence, over a five-year period, a large percentage of rail's managers would not be at work.
What constitutes reckless conduct? Earlier we heard an excellent contribution from the honourable member for Lachlan. Mr Cribb provided a couple of examples in his letter, which continued:
An employee of Thiess was supervising a coal conveyor on night shift when he noticed a build-up of material under the belt. He removed the guard which prevented access, reached in to clear the material and lost his arm. The Commission found against Thiess.
An employee on a farm was operating a Case combine harvester. This machine has a large, open bin built into the top which receives the grain and which has two horizontal augurs (screw feeders) in its floor to pass the grain across and out into a waiting truck. The employee mounted the machine and, despite signage and training, entered the bin to remove the grain packed into the augur channels—with his foot, which he lost. WorkCover is prosecuting the farmer, the machinery dealer and Case in America. It has not yet gone to the Commission.
He stated that two mining companies in an upcoming court case involving the loss of an employee in an industrial accident have gone to the Supreme Court to complain that the onus of proof is the wrong way around. Mr Cribb urged us not to support the bill. I received correspondence from Rod Owens, the Dealer Principal of Geissler Motors, which stated:
I'm sure you would be aware of the State Government's proposed New Workplace Death laws.
The letter went on to outline several concerns that other members have raised. He is extremely concerned about the impact of the bill on employers. I received a copy of a letter from Brian Osborne of Ellendon in Bungendore that he sent to the Premier, which stated:
I write in respect to the proposed amendments to the OH & S legislation regarding workplace fatalities.
The possibility of a fatality in the workplace, or at any place for that matter, hangs over us all as something like the sword of Damocles, something that we would prefer to have totally eliminated from our presence, yet something that we have to realise cannot, in absolute terms, be so eliminated in a functioning society.
As a lifelong farmer I am so far fortunate as to not having had a fatality under my jurisdiction.
He wrote something that would be echoed in the thoughts of many farmers, many rural people and many, if not all employers, in their right mind, across the State:
I would be quite shattered if I had, and such would for me at any rate be more than enough punishment without having an interior view of Long Bay's walls for any retirement enjoyment that I could muster under the circumstances.
Farming, if I may refer to that occupation in particular, of necessity may not have the most favourable record in safety statistics, but it is arguably the best of all outlets for young and adventurous people who like to have a job without being cocooned.
He went on to say many other things, but time precludes me from outlining everything that he said. I received correspondence from Edward Kerry Thompson and Ruth Lynette Thompson, 35 Meehan Street, Yass, who also are extremely concerned about the workplace fatalities bill, which stated:
The bill creates an area of concern for all employers, due to the capacity of Trade Unions to prosecute employers under the Act ..
That was a point emphasised by the shadow Minister because the trade unions will be able to collect up to 50 per cent of the fine imposed. The letter goes on to state:
This creates a situation of moral hazard, in which the decision to prosecute may not be guided by a test of public interest, but rather by industrial objectives and financial reward.
I received a letter from Simon Reading of Wambidgee in Gundagai, who expressed his concerns about trade unions being entitled to up to 50 per cent of the fine. He makes some very salient points in his submission to me. He states:
It is a sad fact that many farmers and their families have lost their lives in what is in its nature an unpredictable profession. We are the first to say lets do all that is possible to make farming safer. It is our lives and those of our families at risk. The issue is of utmost importance to us, which is a good reason for the lawmakers to hear our protests. Make it safe, but also make it reasonable and fair.
The underlying motivation of the writers of many of the letters I have received is a desire not to have fatalities in the workplace. Nothing is more soul destroying than a tragedy that could have been avoided. But we should not unnecessarily take the next step of gaoling employers who are not at fault. I received correspondence from Tony Medway of Garway at Dalton, who expressed his concern about the bill. I received correspondence from A. Geoffrey White from the Mundango Pastoral Company, who states, "We are very conscious of the need to have a safe environment on the property ... ". Many of the people who have written to me represent rural enterprises. I have also received a limited quantity of correspondence from retailers and larger employers, but the overwhelming majority of letters I received was from rural enterprises.
I received correspondence from the New South Wales Farmers Association Gundagai District Council under the signature of Ken Skinner, who is the honorary secretary-treasurer and who lives at Donna Valley via Coolac. His letter states that at the annual general meeting of the Gundagai district council on 5 April, the council discussed the implications of the State Government's workplace fatalities bill. He was asked to let me know that all of the members of the council view the bill with great alarm and voice their strong opposition to it. He said they would appreciate my support in this regard.
I received correspondence from Lorraine Wysman of PRD nationwide at Tumut, who has been a real estate business operator in the Riverina area over the past 20 years. She has provided employment for many people and currently employs six. She takes her corporate and community responsibilities seriously and has supported the local community in many ways, in particular by sponsorship and more specifically as a Rotarian, as a member of the Industry Advisory Committee, the Tumut High School Advisory Committee, the Tumut Development Corporation and also as a member of the All Saints Anglican Parish Council. She is very concerned about the underlying motivation of this bill and has asked me to express her concerns.
Hugh Cook from Little Burra at Yass wrote to me to express his concerns about the legislation, as did M. Burns and P. Horsley of the Yaven Pastoral Company on the Snowy Mountains Highway via Adelong. I also received correspondence from Jim Beale from Tumut, who is very concerned about the legislation and who expressed concern on behalf of 130 members of his local branch of the New South Wales Farmers Association. Gerald C. Spackman on behalf of Samuel, Martin and Rogerson Pty Ltd and Graeme Tickner on behalf of the Gundagai Shire Council have written to express their concerns. Bill Tooth has written on behalf of the Longreach Pastoral Company of Marulan to express concern. I also received correspondence from Rachael and Peter Foley of Fairview at Cullerin and Byll Swan of Mirrabooka at Murrumbateman. The list of correspondence goes on and on. The Opposition will continue to oppose this legislation because our electors ask us to do so.
Ms NOREEN HAY (Wollongong) [9.13 p.m.]: Throughout the debate on this bill, the Opposition has provided example after example of incidents that in many cases were simply unavoidable. All honourable members are aware of those types of incidents. However, it is agreed by business, unions and community leaders that among employers there are reckless and scurrilous operators as well as those who are referred to as shonks. Examples of recklessness in some workplaces have been provided by the Construction, Forestry, Mining and Energy Union [CFMEU]. Whether the Opposition likes it or not, the CFMEU represents a large work force in a dangerous industry. Among others, the Transport Workers Union represents a large rural and metropolitan work force and has provided many examples of injuries that workers are exposed to through sheer recklessness, and in some cases that was deliberate. I led a delegation from the Illawarra Business Chamber to consult the Minister on the draft exposure bill. The Illawarra Business Chamber was pleased with the provisions that ultimately were to be presented to the Parliament, and said so publicly.
Mr David Campbell: The Illawarra Business Chamber supports this legislation.
Ms NOREEN HAY: As I was just about to say, and as my colleague the Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business correctly states—
Mr Paul McLeay: And the honourable member for Heathcote.
Ms NOREEN HAY: As well as the honourable member for Heathcote, the Illawarra Business Chamber supports this legislation. Although some people would have preferred much stronger provisions and others consider that the bill goes too far, there is no doubt in my mind, as a result of many discussions I have during the consultation process, that the purpose of this legislation is to target employers who deliberately put their employees' lives at risk. The legislation is not intended to apply to generally occurring, ordinary and unavoidable accidents. For those reasons I am pleased to speak in support of the bill.
Workplace safety is a matter that should concern us all because a workplace death is something that could potentially affect us all. This bill is targeted at eradicating from the workplace those who have little or no concern for the safety of others in the workplace. The bill is a product of extensive consultation with unions, employers and individuals. Indeed, the level of interest that this bill and its predecessor have generated is testament to the level of concern in the community about workplace safety and needless workplace deaths. Therefore, the extent to which the Government has invited discussion and debate through consultation on this bill and on workplace deaths generally needs to be recognised and applauded. A great deal of discussion has taken place in the preparation of this bill. As I indicated earlier, communication has been ongoing. Delegations have met with the Minister and extensive public meetings have been held to ascertain what measures the community will support. As I stated earlier, the bill is supported by all the groups that have been involved in the consultation process.
Mr ACTING-SPEAKER (Mr Paul Lynch): Order! The honourable member for Gosford and the honourable member for Murrumbidgee will come to order. I note it is after dinner, but they will still come to order.
Ms NOREEN HAY: Many employer organisations, such as Australian Business Ltd and the Australian Industry Group, as well as the Illawarra Business Chamber, have acknowledged and appreciated the opportunity to make full submissions and engage in discussions on the bill. The New South Wales Farmers Association has also publicly expressed its thanks for the opportunity to be heard fully in relation to the bill. The extensive consultation has ensured that the bill has been met with general approval. The bill before the House has been welcomed by unions, the New South Wales Farmers Association, the State Chamber of Commerce, Australian Business Ltd, the Australian Industry Group, the Illawarra Business Chamber, the Law Society and small businesses.
The objective of producing a bill that will target those who are most culpable in the workplace has been achieved and the positive response from stakeholders reflects that. The positive response to the bill from the community shows clearly that anyone who is indifferent to work safety deserves to be punished with the full force of the law. If a person has the requisite culpability under the new workplace death offence, they must be prepared to suffer the considerable penalties. No-one in this day and age can abrogate responsibility for the safety of others in the workplace. It is a responsibility that rests with us all and one that we ignore only at our peril. I take this opportunity to thank all the groups and individuals who contributed to the debate on workplace deaths, including the South Coast Labour Council and the New South Wales Labour Council, who have shaped this bill into an effective and appropriate weapon against those who are indifferent to workplace safety.
Mr Milton Orkopoulos: Like that lot opposite.
Ms NOREEN HAY: Yes, just like those opposite. The consensus in the community is that there is no longer any place for criminally reckless conduct in the workplace. The bill will enforce that view, and I commend it to the House.
Mr MALCOLM KERR (Cronulla) [9.20 p.m.]: This bill—
Mr Paul McLeay: The electoral fatalities bill.
Mr MALCOLM KERR: No, I will not speak about Ian McManus. This is bad legislation; it is misdirected. The honourable member for Heathcote would realise the impact it will have on the light and heavy businesses in the Sutherland shire. Interestingly, the honourable member for Port Macquarie gave a succinct analysis of the bill. He said that it is a bad prescription for a problem that may well exist. What he called "rogue employers" the honourable member for Illawarra called "shonky employers". They may well be a problem.
Mr Milton Orkopoulos: You call them members.
Mr MALCOLM KERR: The honourable member for Swansea should not be so self-conscious; I was not referring to him. When the words "shonky" or "rogue" get an airing in this place he immediately seeks identification. But I was not referring to the honourable member for Swansea. He should sit down and think about new, clear policies in relation to what is going on in this State.
Mr Adrian Piccoli: He should stop interjecting or this will go on all night.
Mr MALCOLM KERR: Yes. I return to the bill. As I said, the honourable member for Port Macquarie pointed out that there is a problem with rogue employers. If there is, it is time that industry, both employers and unions, got together and sorted out that problem, but not make it for general application. Why is this bill wrong? A number of features of the bill are wrong and I will go through them. The first is the onus of proof. Honourable members, even those opposite, would be aware that the onus of proof in ordinary criminal cases rests with the prosecution. That is something that the honourable member for Liverpool, who is in the chair, would welcome in the ordinary course of his previous career: a person is innocent until proven guilty.
Mr Paul McLeay: Tracie Sonda would agree with this bill.
Mr MALCOLM KERR: No, Tracie Sonda is still innocent until proven guilty. Even she is entitled to that, but we will not go down that track. Under existing law—and this will come as a revelation to members who spoke early in this debate—employers have a statutory duty of care towards their employees and are required to show that all reasonable steps are taken to prevent accidents causing death. As the honourable member for Port Macquarie said, that is how it should be. As the honourable member for Wollongong pointed out, deaths occur in the workplace. Effectively the bill reverses that onus of proof by making the employer—a term which is defined to include supervisors and managers—prove his or her innocence.
We are not talking about rich capitalists, but about people in the workplace. That change is a total repudiation of the common law. The bill does not allow for any defence that an employee was negligent, careless or breached instructions. I would have thought that they are highly relevant considerations when a death has occurred and that they would be taken into account in the interests of justice. I emphasise that. In the interest of justice those factors should be taken into account. The bill provides for the increase of penalties because of aggravating factors, but does not allow for mitigating factors. Once again, as the honourable member for Liverpool would be aware, that is a total repudiation of the rule of law. The bill allows for a person to be imprisoned for up to five years without trial by jury. Again, that is contrary to the accepted and well thought out principles of justice.
Mr Milton Orkopoulos: Like Guantanamo Bay.
Ms Noreen Hay: You don't mind locking up asylum seekers.
Mr ACTING-SPEAKER (Mr Paul Lynch): Order! Government members will come to order. It will be quicker and less painful for all of us if interjections cease.
Mr MALCOLM KERR: Yes, I appreciate that. Those interjections were particularly painful, and I do not intend to respond to them. Although a magistrate sitting without a jury may impose a prison sentence, that is restricted to a maximum of two years. Trade unions are not only allowed to bring prosecutions with the consent of the Minister but are encouraged to do so by their entitlement to receive 50 per cent of the fine. That is justice for sale under the bill, and that is contrary to the principles of justice. Appeals to higher courts are limited. We have an appeal provision because people were prepared to fight the particularly brutal provisions of the original bill. There will be no appeal against fines, only against prison terms. Again, that is contrary to the principles of justice. An appeal can be lodged in the District Court against fairly insignificant fines imposed in a magistrate's court, but the bill provides for fines of up to $1.65 million, and no appeal can be lodged.
Even the honourable member for Heathcote would agree that losing more than $1 million is a significant loss. But he would have to accept it if, when he leaves here, he sets up a business and someone brings a prosecution against him under this bill. These are serious considerations and they show how injustice can be occasioned and what an unjust bill this is. The Sutherland shire has a large number of businesses and I look forward to hearing the dulcet tones of the honourable member for Heathcote when he puts all their fears about the bill to rest. He will address all of those matters. I will refer to some representations made on this side of the House.
Mr Paul McLeay: The electoral fatalities bill.
Mr MALCOLM KERR: Yes, the electoral fatalities bill, with Ian McManus in brackets. I understand what the honourable member for Heathcote is putting forward. I will not be tempted to go down that track, or talk about the Bundeena branch of the Australian Labor Party, or about how the secretary was removed with very little notice. Poor old fellow, he was 80 years old, but I will not be tempted, I will be firm. I will not talk about the annual general meeting of the Bundeena branch of the Australian Labor Party. Even if the honourable member for Heathcote twists my arm or tortures me, I will not talk about it. I will not name employers who might be subject to little visits from unions, but I will mention the Gundagai Shire Council. Recently that council wrote a letter, which stated:
Council was recently approached by a local orchardist … regarding his concerns in relation to the NSW OH&S Legislation Amendment (Workplace Fatalities) Bill 2004. … employs between twenty and thirty people at various times of the year and he is so concerned about the possible ramifications of the Bill that he has advised he will close his orchard operation if it is enacted. Obviously such a move would be most undesirable for the Gundagai community and economy.
Presumably other employers feel much the same as … and if even only a few respond in the manner he has indicated the legislation will produce a result which is totally counterproductive and presumably unintended.
Any legislation dealing with workplace fatalities should require employees and employers equally to take responsibility both for the protection of employees and to ensure that other employees are not injured by the negligence of an employee. Similar penalties should apply. Most small business employers work along side the employees.
I am pleased to see the honourable member for Illawarra in the Chamber in such good spirits. I hope that she is making a full recovery. Another employer, a motor dealer, wrote to me. I am sure that all honourable members have motor dealers in their electorates who will be affected by this legislation. He said:
I have no problem with looking out for my employees. They have every right to expect safe workplace however accidents will and do happen.
The honourable member for Wollongong said earlier in debate that accidents do happen. She is sitting next to one. The motor dealer went on to state:
And for sure no one wants anyone to be injured or worse whilst in their employment.
I am aware that employer groups throughout NSW are incensed at the direction this legislation is taking us. It is hard enough doing business in Australia today without providing another disincentive to employ people.
I have a question.
The NSW Government is the largest employer group with Bob Carr at its head. In the event (of an inevitable death) of a public service employee will legislation ensnare him and if not why not?
I look forward to the Minister's response to these issues. This is unjust legislation. We are united in wanting to ensure that we have safe workplaces in which there are no injuries or accidents.
Ms Noreen Hay: Then you should be supporting the bill.
Mr MALCOLM KERR: The honourable member says that the Opposition should be supporting the bill. We should support strengthening existing industrial legislation.
Ms Noreen Hay: New South Wales legislation?
Mr MALCOLM KERR: All of it. This bill will result in a great deal of injustice as it repudiates the principles people went to war believing they were protecting—the rule of law and human rights. That is what we are talking about. They wanted to live in a society where people were presumed innocent, in a State that did not take away that right.
Ms Noreen Hay: If you are an asylum seeker in this country you get locked up without a trial.
Mr MALCOLM KERR: Who would be locked up without a trial?
Ms Noreen Hay: Asylum seekers in this country.
Mr MALCOLM KERR: I do not want to engage in a debate about asylum seekers but if Government members want to talk about that, the Keating Government introduced permanent detention in New South Wales.
Ms Noreen Hay: The Federal Government locks up families without a trial.
Mr MALCOLM KERR: Those people have recourse to tribunals and to legal representation. Those people have more rights than an employer has under the bill. I am pleased Government members brought up that issue. These are serious matters. The bill should be withdrawn and we should look at strengthening industrial legislation to resolve these problems.
Mr David Campbell: There was a draft exposure bill.
Mr MALCOLM KERR: This is not draft legislation.
Mr David Campbell: We had a draft exposure bill. You had an opportunity for consultation and you didn't take it.
Mr MALCOLM KERR: There has been consultation in relation to this bill, but many of the provisions in it are being imposed on employers. We have only to ask those parties that were involved in consultation to establish whether the Government arrived at consensus. It consulted the community but it did not arrive at consensus, which is a pity because everybody has the same objective. All the people with whom the Government consulted had a vested interest in ensuring that deaths and injuries did not occur in the workplace. Before the introduction of this bill the number of fatalities was decreasing, which is good news for everybody. That is something of which we are all in favour. The Government introduced legislation that does not properly address the problems. Everybody was prepared to negotiate, to come to a consensus and to take preventive measures to ensure that deaths and injuries were minimised. The bill is bad news for large and small businesses in the Sutherland shire, as well as in the rest of the State.
Mr ADRIAN PICCOLI (Murrumbidgee) [9.35 p.m.]: The honourable member for Hawkesbury, who has guests in the Chamber this evening, made a terrific contribution to debate on the Occupational Health and Safety Amendment (Workplace Deaths) Bill. He did such a terrific job that there is not much point in me making a contribution. The bill is extremely important for businesses and for the future prosperity of small businesses in New South Wales. Recently we have seen fairly gloomy figures comparing the economy in New South Wales with the economy in other States. There are a number of reasons why that comparison was not particularly flattering.
The legislative and regulatory regime in New South Wales is part of the reason why our economic growth is not as good as the economic growth in other States. This legislation will only make it worse. Earlier in debate a number of speakers said—and I agree with them—that this issue has generated intense lobbying by a large number of people. Since the first draft bill was presented late last year in the upper House a number of people have contacted my office about the impact of this legislation. They are concerned about how it will impact on their businesses and on their ability to employ people. Forums have been held across the State, industry groups have met with the Minister and they have lobbied members of Parliament.
Ever since last year the process has been intense. I was Opposition spokesperson for mineral resources when the legislation was introduced in the upper House. The Minerals Council contacted me and said, "This legislation will be a disaster for mining", and it gave obvious reasons for that. Since then there has been a groundswell of objection from small businesses about the impact of this bill. I give that background to show why so many people in New South Wales oppose this bill. Businesses that employ people have no faith in WorkCover or the way in which the Industrial Relations Commission administers the Occupational Health and Safety Act. At the end of the day that is why people are so opposed to this bill.
Many members have said that employers do not disagree—I do not think any reasonable person would disagree—with the need to make our workplaces as safe as possible. That is a fundamental principle to which all good people should adhere. No-one objects to the aim of the legislation, which is to reduce the number of people tragically killed in the workplace. But employers have no faith in the legislation because they have no faith in WorkCover. Many employers have had bad experiences with WorkCover and the Industrial Relations Commission in proceedings brought under the Occupational Health and Safety Act. Other members have given examples from their electorates about cases that have had horrendous outcomes.
I have spoken before in the House about an incident involving a citrus farmer in Griffith who for some years had employed a husband and wife to pick oranges on his farm. The farmer had probably done more than most employers to comply with the legislation. He gave his employees a list of tasks and satisfied the requirements of the Occupational Health and Safety Act as much as any employer could. The farmer gave his employees an induction course on the farm and gave them directions about where to park vehicles and how to operate machinery. In short, his staff ticked all the boxes they were required to tick. One morning the employee arrived at the farm, parked his car in the correct spot near the shed and went off to pick oranges. He later left the farm to go into town but upon his return he parked his car not near the shed but at the end of the paddock, where he had been told not to park.
An hour or so later the employee, driving a tractor towing a little trailer with a couple of bins of oranges, reached the end of a row of trees. But he could not turn around because his car was in the way. So he got down from the tractor to move the car but something happened—perhaps the tractor was still moving as he alighted or he bumped the tractor into gear as he jumped off—and the tractor started to move towards his car. The employee reached for the steering wheel to steer the tractor away from his car but he was caught and tragically run over and killed. There is no doubt that that was a terrible tragedy for the man's family and for the family business that employed him. The farmer was subsequently prosecuted by WorkCover, found guilty and fined about $80,000. The ultimate frustration for that employer is that he could not have done more to prevent the accident. WorkCover told him during the hearing that he should have employed a supervisor to oversee the orange pickers. I assure those who are not familiar with the business of picking oranges that a supervisor could have prevented that accident only if he had been sitting on the tractor with the employee. The assertion was totally impractical.
Stories such as that and others we have heard during this debate explain why people have no confidence in WorkCover or in the way that the Occupational Health and Safety Act is applied. This amending bill introduces increased penalties, including imprisonment, and people are fearful that it will be interpreted as badly as the current legislation. If the Occupational Health and Safety Act had been interpreted and applied differently, giving fair consideration to the compliance efforts of employers, and if employers believed the system was reasonable, I do not think they would have objected to this new legislation as much as they have. There are examples of clear negligence and others where there is little evidence of negligent behaviour, but the employer is convicted in almost 100 per cent of cases involving a workplace death. Employers believe they will continue to be convicted under this legislation but the consequences will be far more severe. That is why employers have such a problem with this bill.
I fear for the businesses in my electorate. By their very nature, businesses that operate in the primary and secondary sectors involve dangerous practices. Farming is dangerous. Thirty children die in Australia every year in farm-related accidents. The electorate of Murrumbidgee depends on the farming sector and on secondary industry. Barters Industries operates out of Griffith and Pace Farm has egg processing businesses in West Wyalong and Griffith. My electorate encompasses the largest winegrowing region in New South Wales, and winemaking involves the use of heavy machinery that is quite dangerous. My family grows 350 acres of onions every year and we employ many people. However, my family is seriously questioning whether it is worth the risk employing anyone in case a death occurs. No-one disagrees that employers who are negligent or reckless should be prosecuted. But employers recognise that they will always be prosecuted for deaths in the workplace and, based on the history of the way in which the Occupational Health and Safety Act is applied, will always be found guilty. That is the crux of the problem.
I have counselled my father and brother not to grow onions any more because it is not worth the risk. That would have pretty significant consequences for the 100 or 150 people we employ every summer. My father is 72 years old; he does not have to keep working—he continues the farm more or less as a hobby. But his 150 employees and those of Casella Wines, De Bortoli Wines, Barters, SunRice and farmers will suffer the consequences of legislation such as this. It is a great incentive for every business in the primary and secondary sectors to mechanise. My good friend Victor De Bortoli recently returned from overseas, where he saw huge mechanised wine storage warehouses with not a single employee. It would involve a massive investment on the part of De Bortoli Wines, but it is seriously considering that option because it is not worth the risk of employing someone to work in a shed or drive a forklift. Under the Occupational Health and Safety Act, employers can do next to nothing to prevent every potential accident. If De Bortoli moves in that direction, forklift driver and warehouse jobs will be lost.
Mr Daryl Maguire: It's a knock-on effect.
Mr ADRIAN PICCOLI: Yes, there is a multiplier effect. The history of WorkCover and the way in which the Occupational Health and Safety Act has been applied makes employers feel very uncomfortable about this amending bill. Employers know that they will always lose if prosecuted. They are afraid that if they are prosecuted under this bill they will not only lose their case but potentially spend five years in gaol. That is the real problem with the Occupational Health and Safety Act. If this legislation is passed by this Parliament, I call on it to look seriously at the Occupational Health and Safety Act and the Industrial Relations Commission and the way employers are being prosecuted. The Government should give some semblance of fairness and reasonableness to employers who will embrace this type of legislation. Employers, as much as anybody else, want a reduction in the number of people who are killed in the workplace.
Mr DAVID CAMPBELL (Keira—Minister for Regional Development, Minister for the Illawarra, and Minister for Small Business) [9.50 p.m.], in reply: I acknowledge and thank all honourable members who took part in this debate. Opposition members are clearly not talking about the Occupational Health and Safety Amendment (Workplace Deaths) Bill, because they have not grasped the provisions of this legislation. In a ministerial statement on 5 May, the Minister for Industrial Relations announced the release of the Occupational Health and Safety Amendment (Workplace Deaths) Bill. This bill is the result of a great deal of consultation with both unions and employer groups. The consultation process has resulted in a bill that will ensure that the full force of the law will apply to rogues in the workplace who are indifferent to and disregard basic safety obligations that result in the death of a vulnerable worker.
The bill has the general support of both employers and unions. That support reflects the thorough and comprehensive nature of the consultation process undertaken by the Government. The bill represents the most effective means of targeting those who are most culpable and deserving of greater degrees of punishment. The bill provides a court with the full scope of penalty to deal with the various degrees of culpable behaviour. The community can be assured that reckless behaviour in the workplace leading to death will be punished appropriately. The bill balances the community's concern for justice and appropriate penalties with the interests of the defendant liable to those substantial penalties. The bill protects the interests of the defendant by providing certain new avenues of appeal and providing an additional defence, that of reasonable excuse.
Those elements of the bill will ensure that the workplace death offence will operate only on those most deserving of punishment. I reiterate that right-minded employers, and others who demonstrate a concern for occupational health and safety, will have nothing to fear from this bill. To be found guilty of the new workplace offence requires a high degree of criminal culpability and anyone found guilty will certainly deserve any sentence the court hands down. The views of all stakeholders have been well considered and as a consequence the bill is appropriate. The bill is the most effective form of achieving the goal of safe workplaces by punishing those few who are indifferent to the health and safety of those at the workplace. Once again the Government thanks those unions and employer groups who have contributed so constructively to the development of this bill. The community has the right to expect that appropriate penalties and deterrents are in place to ensure that people who leave for work can return home safely to their families and friends. This bill will make all workplaces in New South Wales safer for workers and indeed all of us. I commend the bill to the House.
Question—That this bill be now read a second time—put.
The House divided.
Ayes, 44
Ms Allan
Mr Amery
Ms Andrews
Mr Barr
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Collier
Mr Corrigan
Mr Crittenden
Ms D'Amore
Mr Debus | Mr Gibson
Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Ms Judge
Ms Keneally
Mr Lynch
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Mr Mills
Ms Moore
Mr Morris | Mr Newell
Mr Orkopoulos
Mrs Paluzzano
Mr Pearce
Ms Saliba
Mr Sartor
Mr Scully
Mr Shearan
Mr Stewart
Mr Watkins
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Noes, 32
Mr Aplin
Mr Armstrong
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Draper
Mrs Fardell
Mr Fraser
Mrs Hancock
Mr Hartcher
Ms Hodgkinson | Mrs Hopwood
Mr Humpherson
Mr Kerr
Mr Oakeshott
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Pringle
Mr Richardson
Mr Roberts
Ms Seaton | Mrs Skinner
Mr Slack-Smith
Mr Souris
Mr Stoner
Mr Tink
Mr Torbay
Mr J. H. Turner
Mr R. W. Turner
Tellers,
Mr George
Mr Maguire |
Pairs
| Mr Bartlett | Mr Brogden |
| Mr Gaudry | Mr Hazzard |
| Mrs Perry | Mr Merton |
Question resolved in the affirmative.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 3 agreed to.
Mr CHRIS HARTCHER (Gosford) [10.02 p.m.], by leave: I move Opposition amendments Nos 1 and 4 in globo:
No. 1 Page 2, clause 4, lines 10 and 11. Omit all words on those lines.
No. 4 Page 6, schedule 2, lines 1-27. Omit all words on those lines.
I advise the Committee that amendments Nos 1 and 4 relate to the provision of an appeal to the Court of Criminal Appeal. The issue to be decided is whether a corporation or person who has been ordered to pay a heavy fine has the right of appeal to the Court of Criminal Appeal. The bill provides for fines of up to $1.65 million to be imposed upon a corporation and $165,000 to be imposed upon an individual, but denies to such a corporation and individual a right of appeal to the Court of Criminal Appeal. The only appeal allowed in full to the Court of Criminal Appeal is where a penalty of imprisonment is imposed.
The CHAIRMAN (Mr John Mills): Order! The honourable member for Gosford has the call, and all other honourable members will cease conversing.
Mr CHRIS HARTCHER: The decision to be made is whether this Chamber agrees that corporations and individuals who have fines imposed upon them under this bill should have a right of appeal. That right is allowed to every person convicted of a motor traffic offence in this State. If a person is found guilty of a charge of speeding and is fined, and wishes to contest the finding, he or she has a right of appeal to the District Court, even though the fine imposed may be as little as $200. Though the fines provided for under this bill can be as much as $1.65 million for a corporation and $165,000 for an individual, the bill does not allow for appeal to the Court of Criminal Appeal. The only appeal permitted is to the Industrial Relations Commission in Court Session.
The CHAIRMAN (Mr John Mills): Order! There is too much audible conversation on both sides of the Chamber. I ask the Government Whip and the Opposition Whip to speak to members.
Mr CHRIS HARTCHER: It is a fundamental right in our system of justice that those who suffer monetary penalties can subject those penalties to a full judicial review. This legislation allows an appeal where a sentence of imprisonment is imposed, but denies appeal where a fine is imposed. What is the justice in that? There is none. What is the rational for that? There is none. The only possible explanation is that the Government, in response to community concern, reluctantly has granted a right of appeal where sentences of imprisonment are imposed. Yet it remains prepared to deny such a right of appeal where penalties of heavy fines are imposed. That is, fines of up to $1.65 million for corporations are not subject to the right of appeal to the Court of Criminal Appeal. The omissions from the bill proposed by these two amendments will ensure that corporations and individuals fined under the provisions of this bill will have the appropriate right of appeal. It is extraordinary that the Australian Labor Party and the Government would be prepared to present in this place legislation that denies corporations and individuals that fundamental right. It is for those reasons that I have moved amendment No. 1 and consequential amendment No. 4.
Question—That the words stand—put.
The Committee divided.
Ayes, 43
Ms Allan
Mr Amery
Ms Andrews
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Collier
Mr Corrigan
Mr Crittenden
Ms D'Amore
Mr Debus
Mr Gibson | Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Ms Judge
Ms Keneally
Mr Lynch
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Mr Morris
Mr Newell
Mr Orkopoulos
Mrs Paluzzano | Mr Pearce
Mr Price
Ms Saliba
Mr Sartor
Mr Scully
Mr Shearan
Mr Stewart
Mr Tripodi
Mr Watkins
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Noes, 34
Mr Aplin
Mr Armstrong
Mr Barr
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Draper
Mrs Fardell
Mr Fraser
Mrs Hancock
Mr Hartcher
Ms Hodgkinson | Mrs Hopwood
Mr Humpherson
Mr Kerr
Ms Moore
Mr Oakeshott
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Pringle
Mr Richardson
Mr Roberts
Ms Seaton | Mrs Skinner
Mr Slack-Smith
Mr Souris
Mr Stoner
Mr Tink
Mr Torbay
Mr J. H. Turner
Mr R. W. Turner
Tellers,
Mr George
Mr Maguire |
Pairs
Mr Bartlett | Mr Brogden |
| Mr Gaudry | Mr Hazzard |
| Mrs Perry | Mr Merton |
Question resolved in the affirmative.
Amendments negatived.
Clause 4 agreed to.
Clause 5 agreed to.
Mr CHRIS HARTCHER (Gosford) [10.16 p.m.]: I move Opposition amendment No. 2:
No. 2 Page 4, schedule 1 [1], proposed section 32B (1), lines 21 and 22. Omit "summarily before the Industrial Relations Commission in Court Session". Insert instead "on indictment before the District Court or the Supreme Court".
The effect of the amendment is to allow people against whom a gaol sentence can be passed the right of trial by jury. Under this bill a sentence of up to five years imprisonment can be imposed on a person convicted of an offence. That sentence of imprisonment would be passed by the Industrial Relations Commission in Court Session, which operates as a judicial body of a judge or judges and does not sit with a jury whereas in the District Court and the Supreme Court all matters on indictment must be heard by a jury. It is a fundamental right of citizens since Magna Carta that they should not have sentences of imprisonment passed upon them without a finding of a jury of their peers. That right is set out for Federal offences in the Australian Constitution, which states that a trial on indictment must be by jury. Yet the Government is prepared to deny trial by jury to individuals and allow them to suffer the penalty of imprisonment.
Any member of the House who votes for a denial of trial by jury when a person can be sentenced to imprisonment is denying a fundamental civil liberty in our society. It is monstrous hypocrisy for the Australian Labor Party to pretend to stand for civil liberties, but also be prepared to send people to gaol without trial by jury. For the Attorney General to sit in this House and vote for such a measure denies the Attorney General any legitimacy to be the protector of civil liberties in this State. The Attorney General is revealed for what he is, a monstrous hypocrite who would send people to gaol without allowing the right to trial by a jury of their peers. Accordingly, the Opposition is proud to move the amendment and stand up for civil liberties, which will allow the people of New South Wales to judge who stands for the individual and who does not.
Question—That the words stand—put.
The Committee divided.
Ayes, 43
Ms Allan
Mr Amery
Ms Andrews
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Collier
Mr Corrigan
Mr Crittenden
Ms D'Amore
Mr Debus
Mr Gibson | Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Ms Judge
Ms Keneally
Mr Lynch
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Mr Morris
Mr Newell
Mr Orkopoulos
Mrs Paluzzano | Mr Pearce
Mr Price
Ms Saliba
Mr Sartor
Mr Scully
Mr Shearan
Mr Stewart
Mr Tripodi
Mr Watkins
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Noes, 34
Mr Aplin
Mr Armstrong
Mr Barr
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Draper
Mrs Fardell
Mr Fraser
Mrs Hancock
Mr Hartcher
Ms Hodgkinson | Mrs Hopwood
Mr Humpherson
Mr Kerr
Ms Moore
Mr Oakeshott
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Pringle
Mr Richardson
Mr Roberts
Ms Seaton | Mrs Skinner
Mr Slack-Smith
Mr Souris
Mr Stoner
Mr Tink
Mr Torbay
Mr J. H. Turner
Mr R. W. Turner
Tellers,
Mr George
Mr Maguire |
Pairs
| Mr Bartlett | Mr Brogden |
| Mr Gaudry | Mr Hazzard |
| Mrs Perry | Mr Merton |
Question resolved in the affirmative.
Amendment negatived.
Mr CHRIS HARTCHER (Gosford) [10.26 p.m.]: I move Opposition amendment No. 4:
No. 3 Page 4, schedule 1 [1], proposed section 32B (2), lines 24 and 25. Omit "a Minister of the Crown or by an inspector". Insert instead "WorkCover".
When this legislation first came before the community in an exposure bill in September 2004, there was considerable community concern about the power of a trade union to institute prosecutions and receive half the fine. That led to an enormous community debate ranging from the New South Wales Farmers Association representing rural Australia through to business and general citizens in the community. The general feeling was that unions had produced this legislation for their own industrial purposes. The Minister announced that he would remove the provision for the purpose of not allowing unions to institute prosecutions, yet in the Labor Party's usual disingenuous and dishonest manner it has included a provision stating that a prosecution can be instituted if it is authorised by the Minister.
Effectively the Labor Party has said to the trade union movement that it will not be able to prosecute, but that if the trade unions apply to the Minister they will be allowed to prosecute. The Labor Party has been caught out. It constantly tries these tricks based on the assumption that everybody is as ignorant as are members of the Labor Party and that other people do not read legislation. Anybody who reads this legislation will realise exactly what it is: a guise for allowing trade unions to bring forward prosecutions.
The CHAIRMAN (Mr John Mills): Order! The honourable member for Gosford has the call. The Leader of The Nationals and the Leader of the House will cease conversing.
Mr CHRIS HARTCHER: Could anyone imagine the Special Minister of State, John Della Bosca, having the moral fortitude to refuse a request by the Construction, Forestry, Mining and Energy Union? Could anyone have difficulty imagining the left wing of the Australian Labor Party demanding its blood money from the Government and demanding the right to prosecute employers? If there is one matter upon which the assembled backbench factions agree, it is the idiom "You scratch my back and I'll scratch yours."
There is Della Bosca, offering deals to the Construction, Forestry, Mining and Energy Union and the Miscellaneous Workers Union, and to all the left-wing unions, that if they do this, if they back this motion at the annual conference, he will authorise the prosecutions. Does anyone doubt the dishonesty of a Government which pretends it has taken away trade union rights to prosecute, and yet allows it by stealth? A section of the Act allows prosecution by stealth; it states that prosecution can be instituted by any person if it is sanctioned and approved by the Minister. The Labor Party is caught out once again in its grubby little deals with the trade union movement. Its sheer grubbiness defies description. The Australian Labor Party is caught out again, but the Opposition moved the amendment with honour.
Question—That the words stand—put.
The Committee divided.
Ayes, 45
Ms Allan
Mr Amery
Ms Andrews
Mr Barr
Ms Beamer
Mr Black
Mr Brown
Ms Burney
Miss Burton
Mr Campbell
Mr Collier
Mr Corrigan
Mr Crittenden
Ms D'Amore
Mr Debus
Mr Gibson | Mr Greene
Ms Hay
Mr Hickey
Mr Hunter
Ms Judge
Ms Keneally
Mr Lynch
Mr McBride
Mr McLeay
Ms Meagher
Ms Megarrity
Ms Moore
Mr Morris
Mr Newell
Mr Orkopoulos
Mrs Paluzzano | Mr Pearce
Mr Price
Ms Saliba
Mr Sartor
Mr Scully
Mr Shearan
Mr Stewart
Mr Tripodi
Mr Watkins
Mr Whan
Mr Yeadon
Tellers,
Mr Ashton
Mr Martin |
Noes, 32
Mr Aplin
Mr Armstrong
Ms Berejiklian
Mr Cansdell
Mr Constance
Mr Draper
Mrs Fardell
Mr Fraser
Mrs Hancock
Mr Hartcher
Ms Hodgkinson | Mrs Hopwood
Mr Humpherson
Mr Kerr
Mr Oakeshott
Mr O'Farrell
Mr Page
Mr Piccoli
Mr Pringle
Mr Richardson
Mr Roberts
Ms Seaton | Mrs Skinner
Mr Slack-Smith
Mr Souris
Mr Stoner
Mr Tink
Mr Torbay
Mr J. H. Turner
Mr R. W. Turner
Tellers,
Mr George
Mr Maguire |
Pairs
Mr Bartlett | Mr Brogden |
| Mr Gaudry | Mr Hazzard |
| Mrs Perry | Mr Merton |
Question resolved in the affirmative.
Amendment negatived.
Schedule 1 agreed to.
Schedule 2 agreed to.
Schedule 3 agreed to.
Bill reported from Committee without amendment and passed through remaining stages.
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