Roche Denise: Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeRoche Denise: Health and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:5993. Text is incorporated into the Bound Volume.]DENISE ROCHE (Green): I rise to take a call on Part 2 of the Health and Safety Reform Bill. This is the part of the bill that talks about persons conducting a business or undertaking or PCBUs which is a term we are using a lot tonight. So I am sorry if anybody has just tuned in and gets to hear “PCBU” and does not know what it means. This part talks about the key principles relating to duties.For this Part 2 I have actually got a Supplementary Order Paper Supplementary Order Paper 105 because within this part is kind of where you see employment law and civil law and criminal law start to get mishmashed up. I refer particularly to—I think it is in my Supplementary Order Paper actually—clause 29E which is around the whole issue of where PCBUs are negotiating with other PCBUs on a worksite. For example there are the port companies that have got contracting companies there. They have got other companies that are being used to potentially undercut some of their directly employed stevedores and you have got a range of people operating who are all employers—who are all PCBUs.There is a part in this section of the bill that talks about how PCBUs operate together. I think it is quite important that they do manage to talk together quite effectively so that the whole place develops a culture of workplace health and safety because otherwise they can neglect their duties. They can say: “No it wasn’t my fault that this terrible thing happened.” In fact during the Health and Safety Reform Bill submissions we did have one organisation say that when I questioned them about the fatality rate that they had at their port. They said: “We have a clean slate.” I said “I can show you the releases about this.” and they said: “It wasn’t us.” So we support the fact that this bill is designed to get those persons conducting a business or undertaking to talk to each other.I guess what my Supplementary Order Paper is attempting to do is to get those PCBUs to talk together and to negotiate with each other in good faith. “Good faith” is a concept that is used in employment law but I was told that you cannot have it—you cannot possibly have it—in this context because basically it relates to two commercial operations not the employer and employee relationship. I understand that. What I wanted to see though was a test of that type of good faith that could operate in negotiations and information exchange between PCBUs. Essentially what we are trying to do is set up a worksite where there are fewer risks across all the different employers or PCBUs operating there.So what I have suggested is that in clause 29E we require that persons conducting a business or undertaking have a duty in relation to the same matter to consult cooperate with and coordinate activities with other PCBUs who have such a duty so that they must deal with each other fairly be active and constructive in discharging their duty and not do anything to mislead or deceive the other PCBUs. I would have thought that this was fairly reasonable and I would be interested to hear from the Minister for Workplace Relations and Safety as to why he has not adopted this very reasonable Supplementary Order Paper.I am also interested in going through the Supplementary Order Papers that the Minister has brought to the Committee—very late but today. One Supplementary Order Paper in particular strikes me as quite interesting. There are a couple of good ones here that we will probably be supporting but the one that I have questions around—and the earlier speaker from the National Party started to talk about it—is this whole issue of the main dwelling house on a farm being excluded. This is in Supplementary Order Paper 108 from the Minister which refers to clause 32(1B)(b). What that essentially says is that the main dwelling house on the farm is excluded from basically being a place of work. However further on in clause 33 there is a whole section about fixtures and fittings of the plant in a workplace.So the question I have is about a situation where the person who lives in the main dwelling does not own the farm but is employed to run the farm and the main dwelling is substandard. It has electrical faults it has all sorts of problems with the plumbing and it has rotten floorboards and it is the main dwelling. What happens then? We do have situations in this country of very very substandard housing and if that is part of the employment package for the person who is employed by the landowner to run the farm and so it is part of their employment relationship it is part of their agreement it is part of their conditions of work—essentially it is one of the ways that they are being remunerated supposedly—why is that exempt from any kind of protection under the health and safety employment law particularly when you consider that this may be a worker who is on call 24 hours a day? Why then in this situation is the dwelling exempt?I would welcome the Minister’s comment about that because this is a new part of the bill that he is suggesting that we adopt now. It was not one of the things that was actually in the bill beforehand although there was quite a lot of discussion around what is a home and what is not. I can even refer to my Supplementary Order Paper on the previous part which is trying to remove the exemption for work that occurs in the home which is deemed to be residential. So I have got some questions around that.I guess the other thing that worries me in this area in this part is that it also talks about offences. Again we see the mishmash between employment law contract law and civil law and there are some inequities that occur. For example in this part if there is reckless conduct then that would mean that a person who was guilty of that under the Health and Safety in Employment Act would be liable for quite a large fine and/or a maximum punishment of up to 5 years’ imprisonment. Something similar under the Crimes Act—criminal law—would get a person up to 10 years in jail. So why is it OK to have that punishment for being reckless outside the workplace but if you are reckless in the workplace you get off a bit easier? These are some of the inconsistencies that I struggle with and I would really appreciate some explanation for them.I agree with one of the previous speakers on this side of the Chamber who said that even though there are some very good clauses in this part of the bill the bill is undermined by the omissions in the first part which is around worker representation and participation and the exclusions of who is covered by the bill and who is not particularly in those workplaces that have fewer than 20 workers which are deemed by some sort of magic process not to be in high-risk industries. Of course although we have had some suggestions about what they may be we have not got them sorted out yet.So I have got some questions and I would be very grateful to the Minister for responding to them. We do like some of the clauses that he has put forward in his Supplementary Order Paper but I have to say—