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Legislative Council
Worksafe Legislation Amendment Bill 2017

23 June 2017
Second reading


Ms PULFORD (Minister for Agriculture) — I draw the attention of members to amendments that were made in the other place. The amendments correct an error identified by WorkSafe Victoria following the introduction of the bill. They make it clear that the amendment to section 132 of the Occupational Health and Safety Act 2004 is intended to apply only to indictable offences. As originally drafted, the amendment would have inadvertently extended this provision to summary offences. As there are no indictable offences in the occupational health and safety regulations, the amendment also removes references to the regulations. I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Andrews government is committed to improving the operation of the Victorian occupational health and safety and workers compensation laws.

The WorkSafe Legislation Amendment Bill 2017 (the bill) makes a range of amendments to improve the operation of the Victorian occupational health and safety and workers compensation legislation by:

improving workplace safety by strengthening compliance and enforcement tools;

ensuring penalties under health and safety laws act as a sufficient deterrent and breaches can be appropriately investigated;

ensuring that injured workers and their family members are entitled to fair and equitable compensation; and

improving the workability of the legislation.

The bill also makes a number of minor amendments that provide clarification, remove obsolete provisions, ensure continuation of current arrangements or are consequential to other legislative changes.

Occupational Health and Safety Act 2004

Extending the time for prosecuting indictable offences

The bill extends the time limit, in certain circumstances, for prosecuting indictable offences under the OHS act.

The current two-year limitation period prevents WorkSafe from appropriately prosecuting offences in situations where a coronial report identifies that an offence has been committed, where an enforceable undertaking is breached, or where new evidence comes to light, outside of the limitation period.

The government is committed to ensuring that employers and individuals in breach of the OHS laws face sanctions that appropriately reflect the vital role of the legislation in protecting Victorian workers. It is important that the sanctions act as sufficient deterrents against committing these offences.

The amendments proposed in this bill allow the time frames to be extended in these limited circumstances and will ensure corporations and individuals who breach the OHS laws can be appropriately prosecuted.

Amending the 12-month time limit for prosecution certain offences

It is an offence for a person to refuse or fail to comply with a request by an inspector for a document to be produced, or to refuse to answer questions asked by a WorkSafe inspector. The powers are integral tools which enable WorkSafe to investigate potential health and safety breaches.

Currently, the 12-month time limit for prosecuting these offences commences from the date that the offence is committed. However, often the failure to produce documents does not become apparent to WorkSafe until more than 12 months have passed.

This bill proposes to amend the 12-month time limit so that it commences from the date that WorkSafe becomes aware of the alleged offence. Again, this will ensure that corporations and individuals who breach these occupational health and safety laws can be appropriately prosecuted.

Strengthening offences which support enforcement and compliance with principal occupational health and safety duties

The bill proposes to make a series of amendments to offences in the OHS act, which support enforcement and compliance with principal occupational health and safety duties.

The OHS act places obligations on employers to notify WorkSafe of incidents and to preserve incident sites. These obligations are important as they enable WorkSafe to investigate and enforce occupational health and safety laws. If WorkSafe is not notified of health and safety incidents in a timely manner, this can lead to difficulties in investigating the circumstances surrounding health and safety incidents, and potentially lead to the avoidance of prosecution for indictable health and safety offences.

These obligations also enable WorkSafe to identify the cause of incidents and to take actions to prevent similar incidents from occurring in the future.

The offences of failing to notify WorkSafe of an incident and failing to preserve an incident site are currently summary offences with relatively low penalties, compared with those for breaches of 'primary' health and safety obligations.

This bill proposes to strengthen these offences by making them indictable and by increasing the associated penalties. These changes will create a more effective deterrent that more accurately reflects the gravity of the offences and aligns with other equivalent offences in the OHS act. A 'reasonable excuse' defence is also proposed to be included for these offences.

The bill also proposes to ensure that the notification duty applies where a person who is seriously injured receives treatment from a nurse. The amendment recognises that there may be circumstances where a person who has a serious injury may not always receive treatment from a doctor.

Consistent with these amendments, the bill also proposes to make the offences of giving false or misleading information or producing a document that is false or misleading indictable rather than summary. Again, this reflects the serious nature of these offences.

Improving the enforcement of enforceable undertakings

WorkSafe may accept an enforceable undertaking given by an alleged offender in the event of an offence being committed under the OHS act or the regulations, rather than prosecuting in the first instance. The undertaking commits the person to taking certain steps to remedy the breach within a specified time frame.

The current provisions make it difficult to enforce undertakings. Once an undertaking is accepted, any charges against the applicant in respect of the contravention must be withdrawn by WorkSafe or struck out by the court, and the court has no jurisdiction to reinstate the charges, even when the undertaking is not met. This undermines WorkSafe's ability to enforce compliance with the OHS act.

For these reasons, this bill proposes to introduce a specific offence of contravening an enforceable undertaking. It also introduces a mechanism to allow WorkSafe to prosecute the offence which was originally the subject of the undertaking if the undertaking is breached or withdrawn.

Service by email

The bill proposes to allow for provisional improvement notice and notices issued by WorkSafe inspectors to be served by email. Currently, notices have to be served in person or via mail. This amendment introduces a more efficient response to contraventions of health and safety laws and reflects modern work and communication practices.

Dangerous Goods Act 1985

Expressly allow for the making of emergency asbestos orders

Emergency asbestos orders have previously been made by the Governor in Council in response to large-scale bushfire emergencies that have damaged or destroyed multiple asbestos-containing properties. Expedient and safe removal of asbestos-containing materials in these circumstances is necessary to ensure the health and safety of the public and to assist communities in getting back to normal as soon as possible. These orders have allowed class B asbestos removal licence holders to temporarily assist in removing asbestos that would otherwise only be removable by class A asbestos removal licence holders. Strict conditions are included in the orders, including training, supervision and waste disposal obligations, to ensure that this work is done safely.

This bill proposes to amend the DG act to include an express power to allow the Governor in Council to continue to issue emergency asbestos orders. The amendments are necessary as a result of the consolidation of various subordinate instruments governing asbestos removal into the proposed OHS regulations 2017. This is another example of the Andrews government ensuring Victoria is appropriately prepared to address natural disasters.

Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985

Increase benefits for family members under the compensation legislation

The Transport Accident Act 1986 allows reasonable costs to be paid to family members of severely injured or deceased workers for travel and accommodation where a person's injury requires them to be hospitalised, or the burial or cremation is held more than 100 kilometres from their residence.

This bill proposes to amend Victoria's workers compensation legislation to ensure that similar entitlements are available under the WorkSafe scheme.

The amendment ensures that appropriate supports are provided to the families of severely injured workers and workers who have died as a result of a workplace injury.

Clarifying the inclusion of casual loadings in a worker's pre-injury average weekly earnings

The WIRC act sets out how a worker's pre-injury average weekly earnings are calculated for the purposes of determining their weekly payments.

This bill proposes to confirm that casual loadings which a worker was receiving prior to their injury are included in the calculation of their pre-injury average weekly earnings and are reflected in their weekly payments.

Confirm that workers impacted by the decision of Aucote are validly covered under the WorkSafe scheme

The decision of Samson Maritime Pty Ltd v. Noel Aucote (2014), the Aucote decision, expanded the ambit of the federal Seacare scheme to cover certain seafarer workers who were previously understood to be covered under state workers compensation schemes, including the WorkSafe scheme in Victoria. The federal government has subsequently passed legislation to reinstate how the Seacare scheme was previously understood to apply and retrospectively exclude these workers from coverage under that scheme.

This bill proposes to amend Victoria's workers compensation legislation, to confirm that impacted workers are validly covered under the WorkSafe scheme, as was previously understood to be the case.

Clarify that a member of a medical panel or an expert giving advice to a medical panel cannot be compelled to give evidence relating in any way to their role and function as a member or expert

The bill proposes to confirm an existing protection afforded to members of a medical panel and experts who give advice to a medical panel. The amendments will confirm that these members and experts cannot be compelled to give evidence relating in any way to their role and function as a member or expert. The rationale for the protection is to maintain the integrity of the panels and to encourage participation of medical panel members and experts. The protection is equivalent to protections afforded to members of the judiciary.

Expanding reasons to review the approval of an employer as a self-insurer

WorkSafe may review the approval of an employer as a self-insurer at any time. Without limiting this power, the WIRC act sets out specific triggers for those reviews, and a failure to notify WorkSafe of these events can constitute an offence under the WIRC act.

This bill proposes to expand the requirement to notify WorkSafe where the employer ceases to employ all workers. This is expected to improve compliance and awareness of changes to self-insurers operations that may affect their ongoing approval as a self-insurer under the WorkSafe scheme.

Amending the 12-month limitation period for prosecutions against self-insurers

The WIRC act requires self-insurers to provide accurate and timely information about their financial liabilities, information regarding workers claims and changes to their corporate structure.

As breaches of these requirements are summary offences, WorkSafe can only prosecute within 12 months from the date on which the offence is alleged to have been committed. Often the failure to produce this information is not known to WorkSafe until sometime later as the provisions relate to financial and other internal dealings of self-insured employers of which WorkSafe has limited oversight.

This bill proposes to amend the 12-month limitation period for prosecutions against self-insurers so that it commences from the date that WorkSafe becomes aware of the alleged offence. This will ensure that self-insurers who fail to comply with their legislative obligations to provide accurate and timely information can be appropriately prosecuted.

I commend the bill to the house.

Debate adjourned for Mr DAVIS (Southern Metropolitan) on motion of Mr Rich-Phillips.

Debate adjourned until Friday, 30 June.