Worksafe Legislation Amendment Bill 2017 | Sue Pennicuik

Worksafe Legislation Amendment Bill 2017

I am pleased to speak this evening on the WorkSafe Legislation Amendment Bill 2017, which is a bill that the Greens fully support. It is a good bill that brings in provisions that will benefit workers and families of workers and will increase penalties for employers who are responsible for deaths and/or injuries in the workplace but also for perhaps tampering with the scene where a worker has been injured or killed and not notifying the authority of what they are required to notify them of under the act.
Thursday, September 21, 2017 - 10:00am
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — I am pleased to speak this evening on the WorkSafe Legislation Amendment Bill 2017, which is a bill that the Greens fully support. It is a good bill that brings in provisions that will benefit workers and families of workers and will increase penalties for employers who are responsible for deaths and/or injuries in the workplace but also for perhaps tampering with the scene where a worker has been injured or killed and not notifying the authority of what they are required to notify them of under the act.

The bill makes amendments to the Accident Compensation Act 1985, the Dangerous Goods Act 1985, the Occupational Health and Safety Act 2004 and the Workplace Injury Rehabilitation and Compensation Act 2013. Amendments to the Accident Compensation Act create compensation of up to $5000 for family members of a person who has died at work, to be used for reasonable travelling and accommodation expenses, or for burial or cremation services for the worker. Of course that is a very tragic circumstance that would be facing any family of a worker in those circumstances, and of course not only would they be dealing with the emotional outcomes of such an event but also maybe dealing with the financial outcomes of such an event. So this is a very welcome provision in the bill.

We know that on average 25 000 workers are injured at work every year. There are anywhere between 90 000 and 100 000 workers receiving compensation at any one time in the system, and in the last financial year 21 people lost their lives in Victorian workplaces.

In the debate on the previous bill I got a little emotional. I can get quite emotional when it comes to workplace deaths and injuries as well, having worked in that area myself for a decade and having seen some very terrible things happen to workers in terms of tragic deaths and also injuries in the workplace, serious injuries that people have to live with for the rest of their lives, psychiatric injuries — they can also occur in a workplace — or long-term chronic illness that may eventually result in death that is caused by exposure to hazards, particularly chemical hazards in the workplace.

This is a very serious issue that affects all workers in all industries to different degrees depending on what they are working with. It is the responsibility of employers to create a safe workplace, to be proactive in that regard and to also be cooperative if such an incident occurs that results in the injury or death of a worker or workers.

The bill also amends the Dangerous Goods Act 1985 to give the Governor in Council further powers to make an order to regulate the clean-up, removal and transport of asbestos, asbestos-containing material, asbestos-contaminated dust or asbestos waste. This covers asbestos of all types, including chrysotile, crocidolite, grunerite and tremolite asbestos. We often hear people in the community saying that some forms of asbestos are less lethal than others, but that is not the case. There is no safe level of exposure to any type of asbestos. We have, very sadly, a continuing toll of workers who have been exposed to asbestos dying from asbestos-related disease and mesothelioma, and we have a growing number of people in the community who are also contracting asbestos-related diseases from exposure in the general community, including in houses, in public buildings and by exposure to demolition sites et cetera. We still have an ongoing problem with asbestos.

On several occasions in this Parliament I have raised with the Minister for Consumer Affairs, Gaming and Liquor Regulation the need to do more work in the community, because since the import, use and manufacture of asbestos were banned in Australia in 2001, 16 years ago — the use of asbestos in building materials was banned about 15 to 20 years before that — we have a cohort of younger people, many of whom are buying and renovating homes, who have no real knowledge of asbestos and who do not necessarily understand that when they are pulling out their sink, ripping up the lino in the kitchen or pulling out lining in a garage, a laundry or a bathroom in a home built prior to the 1980s and 1990s they could be exposing themselves to asbestos. We are seeing this growing cohort of people who are actually contracting asbestos-related diseases, and I am very concerned about that because it is so preventable.

It could be prevented by more information being provided to the community. I have called for action such as that on the sale of a house that contains asbestos, or could contain asbestos, because it was built before the time when asbestos was banned in the building of houses. I have asked that a statement be provided to the new owner that either the asbestos has been removed or the asbestos is still there so people actually know if they are buying a property that contains asbestos. Nevertheless this is a good provision in this bill, but more work needs to be done, and I do encourage the government to do more to become more active in this space.

The amendments to the Occupational Health and Safety Act 2004 are probably the major amendments to the bill. They create a separate offence in clause 10 of the bill for the contravention of an enforceable undertaking. Enforceable undertakings are actions that can be required of an employer after a workplace injury incident where the employer is found to be negligent or responsible for not providing a safe workplace and for in fact being the cause of the incident by not providing the safety equipment, such as guards on machinery, but it could be any type of incident that occurs in a workplace where the employer has not provided a safe workplace.

The enforceable undertaking is in place of a prosecution. I can recall when these provisions came in; I was in two minds about it because I could see on one hand the benefit of the enforceable undertaking actually having the effect of the problem that caused the injury being solved and the workplace being made safer but on the other hand negligent employers would escape prosecution for not providing a safe workplace. This provision creates an offence for contravention of an enforceable undertaking or not carrying out the enforceable undertaking, and I think that is a good thing. Currently under the act, where an undertaking is agreed to, the employer cannot be prosecuted, and when an employer fails to comply with the undertaking there are no penalties for such behaviour, which really is a loophole that has been in the act for too long. It is good to see that being fixed.

The amendments to the OHS act would also introduce a reasonable excuse element for the offence of failing to notify the authority of a notifiable incident and significantly increasing the penalty for that offence, making it an indictable offence where it is currently a summary offence. This element provides an appropriate defence to the increase in the penalty — that is, the reasonable excuse offence. I think that failing to notify the authority of a notifiable incident is a serious thing, so there needs to be an appropriate penalty attached to that. I note that the Liberals have circulated an amendment to completely remove this provision from the bill, which we will not be able to support, because we believe it is a good provision to introduce in the bill.

The bill also introduces a reasonable excuse element for the offence of failing to preserve a site where a notifiable incident has occurred and makes that an indictable rather than a summary offence as well. I note that the Liberal Party have circulated an amendment — Mr Rich-Phillips has circulated an amendment — to remove that section from the bill. Again, we will not be able to support that.

I would have to say that failing to preserve a site where a notifiable incident has occurred and/or an injury has occurred and a person has been killed is a very serious thing to do — to not preserve the site so that the WorkSafe investigators and/or the police who may also be in attendance can ascertain what occurred at the site without it having been tampered with. It would be a very serious thing to actually interfere or tamper with the site and to fail to preserve the site before the authority has been on site to an incident. We think these are much-needed changes to the act.

The bill also amends section 76 to clarify that it is an offence for an employer to discriminate against someone for raising an OHS issue directly with the authority. This is a very important provision as well. It is already an offence to discriminate against an employee for raising an OHS issue with the employer, particularly if they are a health and safety representative. Victoria has a long history and a proud tradition of occupational health and safety representatives in workplaces, who play a very important role in maintaining the safety of workplaces and raising issues with employers about unsafe practices or occupational health and safety hazards in the workplace. If a person wants to raise an issue with the authority, I think it is very important that it is clarified that it will be an offence for an employer to discriminate against someone for doing so, because they are clearly doing so to make sure that their workplace is safe for them and other workers and indeed anybody else who may attend that workplace.

The bill clarifies under section 100 that an inspector who enters a workplace to investigate a breach of the act may require a person at the place to answer questions. These would not be restricted to matters concerning documents they are required to produce under this section. The bill makes some amendments to the act to add the ability to serve provisional improvement notices electronically, as well as non-electronically, and also provides that non-disturbance notices can be delivered electronically in addition to the current method.

The bill also amends the act to allow prosecutions outside the two-year limit in limited circumstances for indictable offences and amends section 153 to change the breach of the provision from a summary to an indictable offence of knowingly providing false or misleading information or documents. Again, in terms of a situation where an incident has occurred and a worker has been injured or killed, to knowingly provide false or misleading information or documents must be regarded as a very serious matter.

The Greens are very supportive of the provisions in this bill. They do improve the operation of the act in terms of actions taken by employers which are either negligent or wilfully and deliberately misleading or attempting to cover up something or attempting to tamper with a site where an incident has occurred.

As I did back in June last year, I would like to take the opportunity to say that, while this bill is one that we are supporting, there are still some leftover problems in the Accident Compensation Act that go back to the Accident Compensation Amendment Act 2010. The previous Labor government made changes in that area to tighten up the eligibility of workers to claim for stress-related or psychiatric injuries by extending the definition of 'management action' under that act, watering down an employer's responsibility to assist workers to return to work but not creating an unjustifiable hardship, and also to reduce the benefits if workers are unable to return to work after 52 weeks.

These are changes that I think the government still needs to address. The fact that the provision remains in the act that a worker who is unable to return to work after 52 weeks can have their benefits reduced is of much concern to me. I know of people to whom this has happened. It is unfair to people who have been injured in the workplace through no fault of their own and are unable to return due to the extent of their injuries, be they physical or psychiatric or both.

Of course we know that the report of the Ombudsman that was tabled last year — and that report of the Ombudsman was Investigation into the Management of Complex Workers Compensation Claims and WorkSafe Oversight — was a very disturbing report to read. The Ombudsman said in her foreword to the report that when she decided to look into WorkSafe and its agents she had received 500 complaints from the previous year from people who had contacted her office to ask for help. She wrote:

These included not only injured workers … but healthcare professionals horrified by what was happening to their patients.

I say that because they are usually the longer term injured patients with the more complex injuries and more complex needs and who have been going through the actual compensation system dealing with the five insurance agencies. If they do not have a stress-related and psychological injury before that, they often end up with one as a result of being through the system.

The Ombudsman said:

We found agents cherrypicking evidence to support a decision to reject or terminate a claim — as little as one line in a medical report — while disregarding overwhelming evidence to the contrary. We found independent medical examiners (IMEs) — whose opinions agents use to support their decision-making on compensation — receiving selective, incomplete or inaccurate information. We also saw evidence that some IMEs were used selectively to advantage the insurers — including those described by agent staff as 'good for terminations'.

The Ombudsman found many things happening in terms of the workers compensation system and the activities of some of the agents, such as 'unreasonable decision-making by … agents'. Agents were also found to have:

unreasonably used evidence in decision-making;

maintained unreasonable decisions at conciliation;

made decisions contrary to binding medical panel opinions;

allowed employers to improperly influence their decision-making;

provided inadequate internal review processes.

The Ombudsman also found that WorkSafe's oversight was 'deficient in some areas' and that the incentives given to the insurance agents to terminate employers were tipping the balance away from fairness to workers.

The Ombudsman said WorkSafe is working towards improving that. We are a year since the report was tabled. Certainly there was a lot needing to be done to work towards that. I personally know of people who have gone through that system. I know of one person who is one of those complainants to the Ombudsman about what happened to a person close to them and how they were actually worn down and completely destroyed by the process that they were forced to go through in trying to get justice in terms of their compensation. So there was a lot of work for WorkSafe to do; let us hope that they have been doing it. Even the agents were all shamed into saying they were going to fix up their processes as well, but in the meantime many workers have been very damaged by what was going on.

It is now 20 years since the ACTU occupational health and safety national campaign 'Stress at work — Not what we bargained for' was launched in 1997 by the then secretary of the ACTU, Mr Kelty, and ran in September and October of that year. I raise that because I was very proud to be very involved in that campaign, and it started with a survey. When I was working there in the national OHS unit we decided to send out a survey to unions, and we had no idea we were going to be bombarded with more than 10 000 responses to that survey. People talked about stress at work and what the causes of it were: excessive working hours, lack of control, unreasonable management actions and occupational health and safety issues not being addressed.

I raise it today because I have noticed in the press of late that Beyondblue has been talking about stress at work and several organisations have been raising just recently the rise in stress at work. People are again talking about it; not that I think they ever stopped talking about it, but it has risen to prominence again. I raise it because I think all employers need to be making sure that their employees are not suffering from stress at work and ensuring that they are removing the hazards and work practices that are leading to it, because it has such an effect on people's lives and on the lives of their family members.

Back in 1997 we were looking at the evidence that stress can lead to anxiety and depression, and I think that is why an organisation like Beyondblue has been talking about it. That 20 years has gone fast but the issue still remains to be dealt with, and I think it is something the government should be looking at in terms of workers who have had their claims of psychiatric injury caused by stress at work accepted by WorkSafe. They have a struggle to have it accepted by WorkSafe under the changed provisions in the Accident Compensation Conciliation Service, and they then have to struggle with being able to continue on benefits, as I have just mentioned, so we still have a lot of work to do to make life bearable for those who suffer workplace injuries. But with those comments, the Greens are very supportive of the bill put forward by the government.

Motion agreed to.

Read second time.


Read more of the debate on this Bill in committee here.