Page 2262 - Week 11 - Tuesday, 31 October 1989
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(a) the representative has taken all reasonably practicable steps to consult with the responsible person ...
(b) any further such steps are unlikely to result in the rectification of those matters or activities.
I can see no reason why the representative has to believe on reasonable grounds that certain things occur when that does not apply to employers. Again we get to the situation of a safety representative who might not be acting reasonably and there are problems there. Courts determine regularly what is reasonable and what is not. That is what they are going to have to do in relation to a large number of provisions here in relation to employers. This particular amendment is an attempt to balance the legislation and make the provisions of it apply equally to safety representatives and employers.
MR WHALAN (Minister for Industry, Employment and Education) (9.42): The deletion of the reference to the representative's reasonable beliefs about the criteria in paragraphs 50(2)(a) and (b) may have the effect of unduly inhibiting the provision of provisional improvement notices. If subclause 50(2) is amended in the way proposed, the validity of a provisional improvement notice may depend on the representative's having first complied with criteria for paragraphs 52(a) and (b) and whether he or she was aware of matters or not. This may make the provisional improvement notice procedure entirely ineffective. As subclause 50(2) currently stands, a discretionary power to issue provisional improvement notices is contingent upon the representative having reasonable grounds for his or her belief in the facts which led to the exercise of the power. It is therefore not subjective and could not properly be exercised on capricious or arbitrary grounds.
Amendment negatived.
Clause agreed to.
Clauses 51 to 57, by leave, taken together, and agreed to.
Clause 58 (Duties of employers)
MR STEFANIAK (9.44): I move:
Page 30, lines 32-34, omit the penalty.
I think this is especially important now when we look at a couple of other clauses and the fact that we do not have a 47A and more specifically clause 43, access to information. Subclause (2) says:
An employer shall not make available to a health and safety committee information of a confidential medical nature relating to a person who is or was an employee of the employer, unless -
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