Today in Parliament, Abigail contributed to a debate supporting an Industrial Relations bill to strengthen the safety and justice for workers in the workplace.
Abigail said:
As The Greens spokesperson for industrial relations, I contribute to debate on the Industrial Relations Amendment Bill 2025 and indicate that we support the bill. The bill follows from amendments passed by this Parliament in 2023 to re-establish the full and proper functioning of the Industrial Court. These amendments will enable that court to fulfil its intended functions effectively and efficiently. Under the former Government, the judicial functions that had previously sat with the Industrial Court had been transferred to the Supreme Court in 2016. Also under the previous Government, prosecutions of breaches of workplace safety were transferred from the specialist Industrial Court into the Local, District and Supreme courts.
Astonishingly, the decision to demolish the jurisdiction of the former Industrial Court was conducted by the former Government without any consultation whatsoever with the court. That is an egregious breach of the basic principles of comity. In 2011 the then President of the Industrial Court, Justice Boland, wrote to the Liberal Party Minister criticising the move. He said:
I am afraid that I am left to conclude that you had no intention of meeting with me or consultation with this institution regarding the changes to the Occupational Health and Safety Laws and, in particular, the transfer of the jurisdiction. I am simply puzzled as to why you saw the need for such secrecy.
Puzzled was putting it very mildly. What that legislation was doing can be clearly and unambiguously read as an outright assault on the rights of workers. Workers in this State were made immediately and directly less safe and less protected as a result of this ideological attack by the former Coalition Government. In 2023 we brought those functions back into their rightful home with a specialist industrial tribunal, and the Government should be congratulated for that. The bill now makes certain administrative and procedural changes to ensure that the Industrial Court is able to once again enforce safety and fairness in our workplaces, as well as various miscellaneous industrial relations amendments following the passage of the Industrial Relations Amendment Act 2023.
The bill amends a number of pieces of legislation. It amends the Crimes (Appeal and Review) Act 2001 in an attempt to simplify the appeal pathways by removing the automatic right of appeal to the Supreme Court for persons convicted or sentenced by the Local Court for an offence under the Industrial Relations Act 1996 or the Work Health and Safety Act 2011, a workplace relations offence, such that a person will only have a right of appeal to the Supreme Court with leave on a question of law alone in relation to a conviction or sentence imposed by the Local Court for an offence under the Industrial Relations Act or the Work Health and Safety Act. The Industrial Court will have appellate jurisdiction over Industrial Relations Act or Work Health and Safety Act matters that have been heard before the Local Court.
Proposed amendments in the bill also provide the right for the Attorney General or the Director of Public Prosecutions to make an appeal to the Court of Criminal Appeal against the acquittal of a person by the Industrial Court relating to an offence under the Industrial Relations Act or Work Health and Safety Act, or other proceedings in which the Crown was a party. The bill amends the Criminal Procedure Act 1986 to allow the Industrial Court to implement the case management procedures under that Act for matters brought before the Industrial Court under the Work Health and Safety Act. This is intended to help reduce delay in dealing with matters under the Work Health and Safety Act, a move that will hopefully see workers able to receive swift justice and safer workplaces.
The bill also amends the Health Services Act 1997 to require an arbitrator for certain disputes under this Act to be a judicial member of the Industrial Relations Commission, and to insert new considerations that the arbitrator must have regard to in making certain determinations. These amendments have been pursued by the Australian Medical Association [AMA], the registered industrial body for visiting medical officers in New South Wales. Under the Health Services Act, the AMA has the right to seek the appointment of an arbitrator to determine the terms and conditions, including remuneration, for VMOs. The former Liberal Government's wages policy capped remuneration increases and, more importantly, placed significant restrictions on the capacity for industrial organisations to seek changes in terms and conditions. In 2016, when the then Industrial Court was abolished, what had previously been provided for under the Health Services Act—that an arbitrator be appointed from the Industrial Court—was replaced to provide that the arbitrator would be a former judge of the Supreme Court or a legal practitioner of at least seven years experience.
With the Government under new leadership, the AMA is seeking updates to the determination governing the employment of sessional and fee-for-service VMOs to reflect modern working practices. By amending the Health Services Act to provide for an appointed arbitrator to be a judicial member of the Industrial Relations Commission—a specialist jurisdiction staffed with experienced industrial practitioners—the provisions that existed prior to 2016 regarding the qualifications of the arbitrator are also now being re-established, and those engaged in arbitration can be confident of a fair and informed outcome. The amendments in the bill require the arbitrator, when making determinations on remuneration and conditions for visiting medical officers, to have regard to certain economic matters, including the fiscal position and outlook of the Government, along with the relevant objects of the Industrial Relations Act, which is in keeping with the industrial regime that applies to other public sector workers in New South Wales.
The bill also makes amendments to the Industrial Relations Act to clarify that the regulations may provide for the refund or waiver of fees and charges imposed by the Industrial Relations Commission. It also provides that the procedure for appeals from the Local Court to the Industrial Court will mirror the procedure for appeals to the District Court, rather than to the Supreme Court, in the applicable provisions of the Crimes (Appeal and Review) Act. The current arrangement under the Industrial Relations Act as to the appeals pathways available is unclear, which is creating uncertainty for both litigants and the Industrial Court around the rules that apply to appeals.
The bill also makes amendments to the Parliamentary Remuneration Act 1989, which is always a funny one to be amending, because who else gets the strange privilege to amend the legislation directly related to their own pay and conditions? The proposed amendments excise the reference to section 146C of the Industrial Relations Act and replace it with terms that state that the Parliamentary Remuneration Tribunal must have regard to the fiscal position and outlook of the Government when making its determinations. That brings the remuneration increases in line with those of the rest of the public service, which seems appropriate. The bill makes minor administrative amendments to the Police Act 1990 as a consequence of the re-establishment of the Industrial Court, updating references to "the Chief Commissioner" with "the President of the Commission". We really are changing the world here.
The bill also amends the Work Health and Safety Act to provide that civil proceedings regarding engaging in or inducing discriminatory or coercive conduct are to be heard by the Industrial Court, rather than the District Court. Again, that amendment recognises the pre-eminence of, and the appropriateness of workplace matters being dealt with by, the specialist Industrial Court. I congratulate the Government for working to re-establish the Industrial Court as the specialist court for workers and workplace matters. We are slowly taking the steps necessary to unwind the ideologically motivated anti-worker agenda of the previous Coalition Government.
I welcome the Government's approach, and I look forward to working with the Minister for Industrial Relations and her team on the long road of reform. I hope that the road will not be too long. As I have raised previously in this place, some clear and easy reforms that are sitting on the table would go a long way towards rebalancing the table for workers, and I can see little reason for delaying those simple reforms. I foreshadow that I will move an amendment to that effect, which would revert another small section of our workplace relations system back to the form it had prior to the destruction caused by the former Government. I hope that the Government is able to seize the opportunity presented to us in the legislation and support that amendment. The Greens support the bill.
Later in the debate, Abigail moved the following amendment to the bill:
I move The Greens amendment No. 1 on sheet c2025-032A:
No. 1 Prosecution of work health and safety offences
Page 7, Schedule 1.9. Insert after line 33—
[2A] Section 230 Prosecutions
Omit ", but only as permitted by subsection (3) if the offence concerned is a Category 1 offence or a Category 2 offence" from section 230(1)(c).
[2B] Section 230(3)
Omit the subsection.
[2C] Section 230(6)
Omit the subsection.
As I foreshadowed in my contribution to debate on the second reading, this amendment is one I consider relatively simple and immediately available to the Government. It would unwind some of the harm done by the former Government. The amendment would reinstate the rights of unions to prosecute, within the New South Wales Industrial Relations Commission, all breaches of the Work Health and Safety Act. It also seeks to reinstate the Industrial Court's ability, in relation to proceedings for an offence against the Work Health and Safety Act brought by the secretary of an industrial organisation, to direct that a portion of a fine or other penalty imposed in the proceedings be paid to the prosecutor. The ability of a prosecutor to recover a share of a fine is provided for under section 122 of the Fines Act 1996, but currently the Work Health and Safety Act expressly excludes from that recovery regime prosecutions brought by unions. The amendment seeks to overturn that anomaly, although that is probably not the right word for it, as it fails to account for the deliberate intent of the former Government when it wrote that exclusion into law.
It is worth noting that the amendment seeks to merely reinstate elements of the regime that existed prior to the New South Wales Coalition Government's reign of anti-worker repression, when it repealed the Occupational Health and Safety Act and replaced it with the Work Health and Safety Act 2011. Removing the ability of unions to prosecute all offences under workplace safety legislation and excluding them from the fine-sharing regime that applies to all other sectors remain as outrageous today as they were in 2011. The Minister for Industrial Relations and Minister for Work Health and Safety, Sophie Cotsis, was once a member of this place. In 2011, in contribution to debate on this matter, she said:
Part of the reason that New South Wales leads the rest of the country in reduced workplace injuries and deaths is that our system has features such as the ability of unions to prosecute, the onus of proof on employers and the expertise of the Industrial Relations Commission. Those are features that the Government is hell-bent on removing, despite the adverse effect that that may have on workplace safety in New South Wales. I turn first to the right of unions to prosecute. For 70 years in this State unions have had the right to take court action over safety breaches on behalf of working men and women who have been injured in the workplace. The unions have used their right to prosecute properly and carefully. It has not been abused. Even the Minister said in this place on 11 May that the number of union prosecutions is small. Information on the public record indicates that there have been approximately 20 union prosecutions in the past 10 years.
New South Wales was once a nation leader in workers' safety, driven in no small part by our robust compliance and prosecution framework. In 2009-10, according to Safe Work Australia's records, New South Wales had the lowest number of fatalities recorded over the previous seven years, with a 26 per cent decrease. Incidence rates of serious claims by jurisdiction had New South Wales as one of the best in the nation. Look at the same data today. New South Wales is far and away the least safe place in which to be a worker. In 2022-23 the incidence rate of serious claims in New South Wales was 50 per cent higher than the national average. The current regime is not working.
In debate in 2011, members including my Greens colleague David Shoebridge, then a member of this place and now a senator, listed off the proud and impactful history of union-led prosecutions resulting in important reforms for workers' safety. The Finance Sector Union's prosecution of the big banks, following armed hold-ups in branches, led to a $100 million investment in improved security. The prosecution brought by the Australian Manufacturing Workers' Union against James Hardie Australia resulted in the court finding James Hardie guilty of failing to have safe work systems in place, resulting in fines to the company and improvements by James Hardie to its work practices, preventing further serious injuries. There was example after example of unions making meaningful and impactful prosecutions in defence of their members and for the benefit of all workers. There was no example of aggressive prosecution or weaponisation of proceedings. I quote Ms Cotsis again on that point:
Considering all the facts and examples, which the Government refuses to, it is clear to anyone that the right to prosecute by unions has been treated respectfully and properly by the unions. By prosecuting workplace safety breaches, unions have improved worker safety. There is no reason or ground for removal of this right.
That logic has not changed, and there is no reason or ground for not reinstating this right today. Arguments around harmonisation of our workplace safety laws may be given, and harmonisation can be a good thing when it is a rising tide that lifts all boats. But we have seen over the past 13 years that, rather than being a rising tide, it has been an anchor dragging us down in a race to the bottom. I will leave off from quoting Ms Cotsis again because she was not the only person from the Labor benches decrying this dangerous approach to workers' rights. The Hon. Peter Primrose also had some insightful contributions. He said:
Harmonisation of occupational health and safety laws has widespread support, including from the union movement. However, unions and family groups have long campaigned for the Government not to allow removal of two key elements of the workplace safety system that enhance workplace safety in New South Wales—union prosecutions and the reverse onus of proof. Harmonisation was never meant to reduce protections for workers by removal of union prosecutions. Even under the Howard Government the Workplace Relations Ministers Council promised "to ensure that protections are not reduced". When the national occupational health and safety review commenced the terms of reference clearly stated, "In developing the harmonised occupational health and safety legislation, there should be no reduction or compromise in standards".
This is not a controversial amendment. It is reverting back to a regime that served us well for decades, before the aberration of the past 13 years. In that time we have seen an overall decline in workers' safety and the explosion of corporate profit and influence. Workers have never had a greater need for their unions to be empowered to protect them, because unions are one of the few remaining areas that remain free of corporate and regulatory capture. I know that the union movement in New South Wales is strongly in favour of this amendment and has asked the Government to support it. I implore the Government to do so, to act decisively and in keeping with its principles and policy.
I have immense respect for the Minister and her team, and I appreciate their collaborative approach to working with me and my office. I think we are working towards much the same goals in this space and only want what is best for workers and to keep them safe in their workplaces. I remind those opposite that they won the election. They have the numbers, with the support of The Greens and the progressive crossbench, to make real and positive reforms that the public and workers of this State are crying out for. They just need to seize the opportunity before it slips away. I commend the amendment to the Committee.
The amendment was negatived.
Read the full debate in Hansard here and here.
20 February 2025