Page 3901 - Week 10 - Thursday, 28 August 2008
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The Safety Institute of Australia point out some flawed areas. They say that privately initiated prosecutions promote confrontation rather than cooperation and put us out of step with most of the rest of Australia, particularly in relation to the provision allowing prosecution by employer representative groups. They mention lack of consideration of federal harmonisation inputs, with expert groups scheduled to report in the next six months. They also say that, while the ACT is long overdue to review its OH&S legislation, the current process has been in operation since 2005, including a period of more than 12 months when the government did not progress a response to the OH&S Council’s review, and waiting another six months will not adversely detract from reaching an ultimately superior position.
The HIA, the Housing Industry Association, is concerned about the definition of a worker. It says that employer duties should be owed to all persons at a workplace, but without deeming a subcontractor, labour hire worker or franchisor to be an employee for the purpose of safety laws. It says that to do so is contrary to the control base liability principle and unravels the earlier proposal to not assign responsibility to anyone in a way that is disproportionate with their actual level of control. It supports the worker consultation unit in principle, but says that the bill should recognise that the built process for residential construction is vastly different from the built process for commercial constructions: a residential site may have only two workers on site at any one time but a commercial project may have hundreds. We see that all the time in Canberra.
It is concerned about the union right to prosecute, just as the other group were concerned about the employee right to prosecute. It is a fair comment from both. It feels that that should remain with the DPP. It says that prosecution action should be transparent and impartial. It says that the common law right to prosecute should remain with the DPP. And might I say this: yes, there are states with a common law right to prosecute, but in the ACT, if you want to take a private information for assault against someone, you cannot do it now. If you do that, the DPP will either take it over or discontinue it. There is still confusion as to exactly what this means.
There are some real dangers here. You need an independent arbitrary body which everyone accepts is arbitrary and a professional body like the DPP to do your prosecutions—not employers or unions who might have unreasonable grudges against each other or whatever. There are problems there. By all means, you need legislation to ensure that workplace breaches are prosecuted, but they have to be prosecuted by a third party; even the common law right is problematic.
Let me go to the ACT and Region Chamber of Commerce and Industry. They say that private prosecution provisions are a compromise from the first draft. They say they feel they can live with that, but they are greatly concerned by the inclusion of volunteers in the definition of worker. The ACT is the only jurisdiction in the country to attempt to do this. It will be a major concern for many organisations that rely heavily on volunteers, particularly in the community and care sectors. They would like very flexible consultative arrangements modelled on those of New South Wales.
For UnionsACT, the consensus by stakeholders is that this new bill enables all employers to be OH&S compliant using a number of methods. They feel that it brings
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