Occupational Health and Safety Amendment (Employee Protection) Bill 2008

Ms PENNICUIK (Southern Metropolitan) -- I am very pleased to speak today on the Occupational Health and Safety Amendment (Employee Protection) Bill 2008. I am pleased to speak on a bill that will improve the lives of working people, in particular those who act as occupational health and safety (OHS) representatives or who are just ordinary workers trying to improve OHS in their workplaces. As members would know, improving health and safety in workplaces across Victoria, Australia and the world is an ongoing project. Members would be aware that before coming into Parliament I worked for seven years with the Australian Council of Trade Unions in the area of occupational health and safety. I worked at a national level on national standards, on legislation and on annual health and safety campaigns as well as on providing information and advice to workers about occupational health and safety issues in their workplaces. For those reasons I am very pleased to speak on and to support the bill before us.

In many ways it is not a complicated bill. As usual, Mr Rich-Phillips has outlined the bill very comprehensively.

In essence it amends the Occupational Health and Safety Act 2004 to allow civil actions by employees, including prospective employees, against employers who engage in discriminatory behaviour with regard to occupational health and safety. It covers discrimination instigated by third parties, including registered employee organisations. It removes the penal provisions and a range of other penalties applicable in OHS criminal prosecutions. The industrial division of the Magistrates Court will be the core primary jurisdiction and, as Mr Rich-Phillips outlined, it will make orders and award damages for proven breaches of a new section, 78A, which will be inserted into the act.

Orders for damages can also be made against a third party in a successful action.

The bill provides a 12-month time limit for plaintiffs making application to the Magistrates Court.

That is important because in the area we are talking about -- that is, discrimination against people for raising health and safety issues in their workplace -- there can be many reasons why people would take some time to make an application, and we should be supporting that in the interests of workers who are in a powerless position in the workplace. That provision in the bill is welcome.

One of the main purposes of the bill is to replace the word 'dominant' with the word 'substantial' to describe the reason for the conduct not complying with the OHS act or the compensation act. That is something that the union movement has long been advocating for -- that is, that the existing criminal provision, the reason for the alleged discrimination, had to be the dominant reason before a criminal conviction could be secured. That has been a weakness in the current act because it is a very high bar.

Because of the dominant reason being such a high bar, the evidence is that WorkSafe undertook very few prosecutions in cases where health and safety representatives had been discriminated against and which had merit. Replacing 'dominant' with 'substantial' to describe the reason for taking civil action is a welcome improvement.

The bill provides that civil action will not preclude a criminal prosecution and that further damages cannot flow from a criminal conviction where a previous civil action has been successful, with damages awarded. The same applies where a prior criminal action has resulted in damages being awarded.

I have received some opinion on the bill from the Victorian Employers Chamber of Commerce and Industry, as Mr Rich-Phillips outlined he has also received. I do not agree with the points that VECCI has made in the letter to me.

This bill will improve the situation for health and safety representatives, who in their workplaces undertake a voluntary role representing workers in their designated work groups. It is a role over and above their duties, even though under the act they have some support, in terms of time and resources. When they are raising issues either as a result of things that they have observed in the workplace or because they have been brought to their attention by other workers and they are making representation to their employer about either a new occupational health and safety issue in the workplace or an outstanding one that has not been resolved, it puts them in a position where they can be and are open to discrimination by employers.

When I worked at the Australian Council of Trade Unions (ACTU) occupational health and safety unit, I worked with the Victorian branch of the Australian union movement in coordinating occupational health and safety campaigns to draw attention to important OHS issues, including ongoing issues that we have in the workplaces on subjects such as dangerous machinery and equipment, chemicals and other substances and on what at the time were seen to be emerging issues, such as stress, unreasonable and dangerous working hours. Those issues still exist in the workplace and exercise the minds of employers, regulators and workers and their unions.

In 2001 we coordinated a campaign related to the work of health and safety representatives to draw to the attention of the community the valuable work of health and safety representatives. In the course of that campaign we coordinated the 2001 ACTU national survey of health and safety representatives. The results of that survey were that fewer than half the health and safety representatives surveyed said that their employer regularly carried out workplace health and safety inspections, and more than 1 in 10 said that their employer never did. Almost a quarter of health and safety representatives did not believe that their workplaces met safety standards and regulations. More than 30 per cent said that sick or injured workers were pressured by management to return to work before they were ready. About a quarter said that they had been pressured by the employer and/or management to not raise health and safety issues. Almost 1 in 5 said that they had been bullied or intimidated by the employer and/or management because they had raised health and safety issues.

The figures were quite high. They came from a survey of health and safety representatives who were elected in the workplace and were trained to represent their designated work groups and fellow workers on health and safety issues. The figures, which I suggest are an underestimation, are quite concerning.

That is not to say that there are not employers who take the matter of health and safety seriously and do their very best to provide a healthy and safe workplace. For example, I have attended the WorkSafe awards nights where health and safety representatives won awards. I met not only fantastic health and safety representatives there but also good employers. The survey figures, especially those showing that a quarter of the people surveyed said that they had been pressured by their employer not to raise health and safety issues in the workplace and 1 in 5 said that they had been intimidated for doing so, are concerning.

I do not know whether there would have been much change in the figures between then and now. That is why employees who consider that they are being discriminated against in their workplace should be able to take civil action and get some redress for that.

The ability to do that might reduce the incidence of that happening to health and safety representatives and employees who are raising the important issue of occupational health and safety in their workplace. They need to be supported by the law. They are supported in many ways by the Occupational Health and Safety Act, but if they are discriminated against in their workplace for raising health and safety issues they need to be supported by us in the Parliament and by law to have a remedy.

It is worth noting that the International Labour Organisation estimates that each year in Australia about 6700 people die from work-related injuries or diseases. We often focus on traumatic injury suffered in the workplace but we lose sight of work-related diseases, which result in the vast majority of deaths.

According to the Australian Bureau of Statistics, over 477 000 people a year suffer from work-related injuries or illnesses in Australia, and only 40 per cent of those receive workers compensation. Usually the reason people do not claim workers compensation is that they are afraid of being discriminated against in their employment. This is a bad situation. If people are injured or made ill at work, they are entitled to compensation and they should be supported in making such claims. They should not be in a position where they feel that they cannot even raise the issue and claim what is their right to claim and that if they were to do so, they would be discriminated against. In a survey we conducted on stress, we found that people were not raising the issue of stress in the workplace for the very same reason -- that is, they felt they would be stigmatised, discriminated against or pressured in the workplace. Pressuring workers not to raise issues and discriminating against them if they do is not going to improve health and safety in the workplace.

If workers are raising issues about health and safety in the workplace, they are usually right and it means something needs to be done about the issue. That should be the approach taken towards these issues.

More than 76 000 workers compensation claims are for body-stress injuries, which are basically related to manual handling -- that is, lifting, pushing, pulling and that type of work. During the last year of my work at the Australian Council of Trade Unions, we raised the issue of the interrelationship between work overload and stress and the fact that these types of injuries can be interrelated and exacerbate each other. This is another issue that needs more attention from regulators around the country.

Around 200 000 Australians have permanently reduced their hours of work or changed jobs as a result of occupational injury or disease. As people age, they often carry with them work-related injuries and work-related diseases.

The announcement by the Rudd government to an unsuspecting public that we will now be working until we are 67 years old is an issue for people who are carrying workplace injuries, particularly chronic injuries. It is chronic body-stressing manual handling injuries and their interrelationships with mental health and mental-stress injuries that are the unseen and unaddressed issues that will come back to bite us.

A concern has been raised with us by the Victorian Trades Hall Council occupational health and safety unit -- a unit for which I have a high regard, I might add -- which notes that in his speech the Minister for Finance, WorkCover and the Transport Accident Commission, Mr Holding, made particular mention of the fact that this bill widens the scope of civil action to include independent contractors. We feel that it probably does, but it would be helpful if any government speaker could confirm that concern. With those few words, I am pleased to support the bill.