Page 795 - Week 03 - Wednesday, 29 March 2006
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Another area of Mr Gentleman’s motion I would like to touch on is the impact this legislation will have on safety in the workplace. Occupational health and safety laws throughout Australia are founded on the premise that safety in the workplace is enhanced by the involvement of workers and their representative organisations. Consultation and participation are essential to achieve good health and safety outcomes. Improving the capacity of representatives of employees and industrial organisations to engage meaningfully with employers in relation to matters of health and safety in the workplace was an important motivation in the development of the territory’s right-of-entry laws that were enacted through the ACT Occupational Health and Safety Act in 2004.
There is clear international evidence demonstrating a direct link between the involvement of workers and their representatives at a workplace and improved health and safety outcomes. This is particularly important on construction sites, where the nature of the work performed is inherently high risk. Mr Gentleman is right to be concerned about the effect of the Building and Construction Industry Improvement Act and the Workplace Relations Amendment (Work Choices) Bill 2005. Both of these pieces of legislation limit fundamental industrial rights to freedom of association, restrict the capacity of workers to take collective action to represent their concerns and will impact on work safety. Already in this place the minister has spoken of the threat that the work choices legislation poses to workplace safety.
As Mr Gentleman’s motion points out, the BCII act likewise continues the federal government’s stifling of workplace safety. Under section 4 (1) (g) of the current Workplace Relations Act, industrial action is lawful if it is based on a reasonable concern about an imminent risk to an employee’s health or safety, provided the employee did not unreasonably fail to comply with a direction to perform other work that was safe for the employee to perform. However, the BCII act and the work choices legislation reverse the onus for this provision so that an employee must show that industrial action was for safety purposes.
Australia’s international obligations include the ILO Convention 155, relating to OH&S, and articles which establish the right of workers and their representatives to inquire into all aspects of OH&S in their work and to take action when it is unsafe to work. While the federal government argues that such a caveat was introduced to prevent spurious action, there is no clear evidence that action based on unfounded OH&S concerns is a widespread problem.
In September 2003, the Victorian government commissioned Chris Maxwell QC to review and update its Victorian occupational health and safety legislation. In his report of 2004 Mr Maxwell recommended that the Victorian government enact right-of-entry provisions for union officials along the lines of the New South Wales government’s OH&S act. In his report, Mr Maxwell investigated the New South Wales experience and found that unions have exercised the right of entry conservatively and effectively.
As time is running out, I might just finally mention the issue of the national building code of practice. The previous code was negotiated in partnership between states and territories so that a collaborative approach to building practice could be taken. Instead, the new BCII act gives the federal minister the power to impose a national code of practice without consultation with states and territories.
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