2016-06-23
Ms PENNICUIK (Southern Metropolitan) — The Greens will be supporting the Treasury and Finance Legislation Amendment Bill 2016, although I might say first off that it is a very oddly named bill, particularly in a week when we are passing the appropriation bills. At first glance you might think this bill is about Treasury and Finance. In fact it is about occupational health and safety, workers compensation and changes to penalties under those acts, as well as changes to payments made to injured workers. While that will affect Treasury and Finance, I do not think it is the best description of the actual bill. The bill itself is a reasonably small bill. It is only a couple of clauses long, and it does the following things.
The bill amends section 159 of the Workplace Injury Compensation and Rehabilitation Act 2013 to ensure the no-disadvantage rule applies to workers receiving payments as a result of injury, regardless of the date on which the worker's entitlement arose. It makes a similar change to section 91EA of the Accident Compensation Act 1985. The amendment to the Workplace Injury Compensation and Rehabilitation Act will apply from 1 July 2014, so retrospectively, to capture any inadvertent drops in weekly payments to workers. These changes will effectively establish a floor beneath the cap on workers' payments so that those payments can never go backwards.
The bill also amends section 32 of the Occupational Health and Safety Act 2004 by increasing the maximum penalty for a body corporate found guilty of an offence of reckless endangerment from 9000 penalty units, which corresponds to $1.365 million, to 20 000 penalty units, which corresponds to $3.033 million. This will address the inadequacy of the current penalty which — as was mentioned in the second-reading speech, and I have had a look at the case — was raised in a case that was adjudicated by Judge Felicity Hampel. In imposing the fines and convictions in that particular case she imposed an $875 000 fine on a company and its managing director for what she described as their woefully inadequate safety procedures. She described as inexplicable and inexcusable the conduct of the defendants in allowing a 21-year-old person to drive a truck with defective brakes and without adequate instruction, training or supervision. She particularly made the point that the maximum penalty was too low, and that was appealed.
The case went to the Court of Appeal in March 2012, and that court noted that the sentencing judge had expressed the view that section 32 offences carried the same maximum penalty as offences under section 21, which were against individuals. The court went on to say that in its view this was anomalous given that the stated intention of section 32 is to create a higher culpability offence. The Court of Appeal recommended that the adequacy of the maximum penalties under section 32 be examined to make sure that they actually reflected the seriousness of the offence as the Parliament had conceived it. The court also made the point that the corresponding provision in New South Wales was more in the order of a maximum fine of $3 million, which is pretty close to the new provision, as provided for in this bill, that will apply in Victoria as well.
Before I was elected to this Parliament I did work in the area of occupational health and safety, and during my time I saw some very reprehensible behaviour by some employers, such as the type of behaviour that was evident in the case that was quoted in the second-reading speech before Judge Hampel, where employers have known that there was a safety hazard and yet have still allowed or even required their workers to carry on duties with faulty equipment, be that a truck, be that other machinery or whatever, and that has resulted in serious injury and/or death of that worker or other workers. I have seen that time and again. That sort of behaviour does need to be dealt with, with the severest of penalties, so that corporations and companies are aware that these are the penalties they face for that type of behaviour and that they will be backed up by the work of WorkSafe in terms of inspecting workplaces and trying to prevent injuries to workers.
What we really want to do is to prevent injuries to workers, but where they do occur because of the negligence and culpability of employers, that needs to be dealt with very severely in my view.
The other amendment made by this bill is to section 158(1)C of the Occupational Health and Safety Act 2004. It clarifies that regulations can be made under the act to enable people to be authorised as both trainers and assessors. That amendment is found in clause 6 of the bill and is a provision which the Greens also support.
I would like to take this opportunity to say that while this bill is one that can be strongly supported by the Greens, there are still some leftover problems in terms of the Accident Compensation Amendment Bill 2010 that go back to the previous government's arrangements in that area where it made changes to the bill which tightened up the eligibility for workers to claim for stress-related or psychiatric injuries by extending the definition of 'management action' in work under that act; watering down the employer's responsibility to assist workers to return to work if it does not create an 'unjustifiable hardship'; and the reduction of benefits if workers are unable to return to work after 52 weeks.
The fact that that provision remained in the act was an issue that I was very concerned about and remain very concerned about in that some workers are so injured that they cannot return to work after 52 weeks. To reduce their benefits is extremely unfair and disadvantageous to people who have been injured in the workplace through no fault of their own because of the negligence of employers. I was amazed and I remain amazed that a Labor government brought in that provision and has left it on the statute book. I draw to the attention of the government that that is an unfairness in the act that it should address. Along with that was the stipulation that injured workers on benefits can only receive superannuation after 52 weeks of being on benefits, and even then they are on reduced benefits. I remain amazed at those unfair provisions that were put in the act and are not to the benefit of injured workers at all, particularly those who are the most seriously injured.
While I am on my feet I might raise the issue very briefly — and it could be a very long conversation — of the crime of industrial manslaughter. There was a bill relating to that issue brought into Parliament in 2001 which did not proceed through the Parliament, but in the meantime that particular crime has been looked at by the Parliament of the Australian Capital Territory, which now has in its Crimes Act 1900 the crime of industrial manslaughter. Also, just recently Greens member of the Legislative Council in South Australia Tammy Franks introduced an industrial manslaughter bill which has been referred to its parliamentary Occupational Safety, Rehabilitation and Compensation Committee for it to inquire into. That committee is due to provide a report later this year, around October.
I will certainly been looking at what happens there and whether the Greens may go down that path in terms of pursuing that issue because that is a gap in the legislation in Victoria. The government should look at that too because there already are examples; the ACT law is a good one and one that the Victorian government could be looking at in terms of that crime. That is a gap that sort of falls out of the subject matter of this bill, which increases penalties for the culpability of corporations. With those comments, the Greens will be supporting the bill.
Motion agreed to.