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Speech: Work Health and Safety (Review Recommendations) Amendment Bill

The Hon. T.A. FRANKS: I rise on behalf of the Greens to indicate our support for the Work Health and Safety (Review Recommendations) Amendment Bill 2024. It is worth considering the context in which this debate happens: 300 South Australians died at work between the years 2003 and 2022. That number is, of course, higher as we debate today. For every single one of those people who died, there was a collective trauma for their family, their workplace, their friends and their loved ones, and that is why it is essential that we get work health and safety right.

We are happy to support changes that reduce risk for workers, so we welcome this bill today. I take the opportunity to thank the minister for his briefing, and in particular his adviser, Angas Oehme, for all the work that they have done. This is a commonsense bill largely implementing changes that will make processes simpler, more accessible and fairer.

We are pleased to see that the SAET has been given jurisdiction to resolve work health and safety matters. While they cannot impose penalties, they can take steps to resolve matters early through mediation, arbitration, expressing an opinion or referring a matter to the regulator for investigation. It has been identified that, previously, the time frame to request review of a SafeWork decision not to prosecute was not long enough. Often, victims or their families were only left with a couple of days before their time to request a review had expired. That also meant that the DPP, which would undertake the review, also only had days—literally days—to make their decision. For these victims and their families, this ultimately meant that their right to a review was a total illusion. The changes in this bill give victims and their families a genuine right of review.

The Hon. Connie Bonaros mentioned Keith Woodford who, after the murder of Gayle Woodford, became known to many of us. We are also very well aware of the work of Voice of Industrial Death (VOID) and Andrea Madeley, who lost her son.

I also want to add that, as I debate this, I will be thinking of Pam Gurner-Hall, who lost the love of her life, Jorge Castillo-Riffo. These changes certainly come too late for all those people, and we do not want to see another workplace death, but should there be these will have a positive impact to at least give some dignity and respect to those families.

Those entering workplaces will now also be able to take 'measurements, tests, photos and videos' that are relevant to suspected health and safety contraventions. This very sensible change means that those reviewing incidents are not solely reliant on witness descriptions and can now utilise objective information taken from the workplace.

It will also now be optional to provide a written report to SafeWork after a right of entry is exercised. SafeWork SA must still be notified before entering, but by making the subsequent report optional it removes that administrative burden where it is not necessary. For those who do wish to submit a report, SafeWork must still advise of any action taken.

Victims and their families will now be able to access information that will help make the process more accessible to those affected by work health and safety breaches. This bill does provide safeguards for confidentiality, but it is not a free-for-all. There needs to be a link to the victim and there are restrictions if disclosure would not be appropriate. While there are limits allowing those involved to gain information, it will make the process less opaque and help build confidence in the regulator's process and that confidence is much needed. This is particularly important for families of workers who have died. Being able to understand the circumstances of a loved one's death at work will help those who are left behind and, as I have said, it is the least this parliament can do.

From the Greens' perspective, we will also be introducing an amendment to this bill. Our amendment will prohibit employers from insuring against fines and penalties that arise from breaches of the Work Health and Safety Act. This comes directly from a recommendation made in the Boland report, which notes that currently there is nothing preventing a body corporate or a sole trader from insuring themselves or a company's director against penalties for offences under the Work Health and Safety Act.

The very point of a penalty is to deter noncompliance. By allowing employers to insure against those penalties, the effect and purpose of that penalty is absolutely undermined. A submission by the federal Department of Jobs and Small Business noted that the

: …availability and use of insurance in such circumstances may create the moral hazard that duty holders will become less vigilant in carrying out their duties under the WHS Act.

There is, of course, at least one example in South Australia of an employer causing the death of a worker and an insurance policy allowed to 'avoid the vast bulk of the anticipated monetary penalty'. This is the case that came before the South Australian Industrial Relations Court in 2013 and at that time Magistrate Lieschke noted:

In my opinion Mr Mainoe's actions have also undermined the Court's sentencing powers by negating the principles of both specific and general deterrence. This message his actions send to employers…is that with insurance cover for criminal penalties for OHS offences there is little need to fear the consequences of very serious offending, even if an offence has fatal consequences.

That is the quote of the magistrate. My quote would be: nobody should be allowed to get away with murder and should they murder they should not be able to insure their way out of the penalty. Employers should not be allowed to hide behind insurance policies and place workers at risk.

South Australia, of course, is one of the last jurisdictions to implement this change and versions of this amendment became effective in New South Wales in 2020, in Victoria in 2021, in Western Australia in 2022, in the ACT in 2023 and in Queensland in 2024. This change, this Greens' amendment, would in fact bring us in line with the model WHS act. The Greens' amendment extends section 272 of the existing Work Health and Safety Act. While currently no contract can exclude, limit or modify the operation of the act, uncertainty around this provision is what has allowed insurers to offer indemnity for penalties under the act.

The Greens amendment makes it clear that no person can enter into a contract of insurance that ensures or indemnifies a person for any part of a monetary penalty under the Work Health and Safety Act. The Greens have modelled their amendment on the Queensland legislation, which was written after recommendations made in the 2017 best practice review of Workplace Health and Safety Queensland. Put simply, no-one should get away with murder, and by ensuring their way out of real penalties this is what is going on currently, and that gap must be closed.

In conclusion, I note the words of Dale Beasley of SA Unions, and I certainly thank him for his briefing on this bill. He, in correspondence to my office, stated:

Until now, when workers have been faced with pressure to perform unsafe work, have had their employers fail to adequately address safety concerns at work or had their employers knowingly put profit ahead of their safety, they and their HSR could seek the assistance of the regulator SafeWork SA. Unfortunately, in situations where SafeWork have not acted, workers have had nowhere to go. This bill changes that.

This WHS dispute resolution process is a significant step forward for our state after almost three years of active campaigning by SA Unions. It delivers on recommendations from both the Merritt and Boland reviews, will expand the avenues available for workers and businesses to positively uphold workplace safety, hold employers who flout their duties to account and to keep workers safe and save lives.

In closing, I noted during the Hon. Connie Bonaros's contribution that she noted this was part of the cost of doing business. My closing quote is: this bill goes a long way to ensuring—and the Greens amendment will go a long, long way to ensuring—that the cost of doing business must never be at the expense of workers' lives.

 

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