Today in Parliament, Abigail successfully moved an amendment in support of the Work Health and Safety Amendment (Standalone Regulator) Bill 2025 to ensure proper parliamentary oversight, highlighting the need for a fully independent and adequately resourced SafeWork NSW to address longstanding failures in workplace safety regulation.
Abigail said:
As The Greens spokesperson for work health and safety, I indicate our support for the Work Health and Safety Amendment (Standalone Regulator) Bill 2025. This legislation puts the enabling infrastructure around the government policy to create SafeWork NSW as its own distinctive executive agency. This will be the culmination of a protracted process of reform to finally bring SafeWork out from under the Department of Customer Service [DCS] where it has languished for years as a paper tiger. Since December 2023, SafeWork has been working as something of a de facto standalone regulator within DCS doing something of a trial separation. We are told by the Minister that on 1 July this year the Government will establish SafeWork NSW as a public sector executive agency by way of an administrative arrangements order. During budget estimates hearings a few weeks ago, I asked how this would work in an operational and nuts‑and‑bolts sense, because I was aware of anxiety within the public service workforce who would be impacted by this operational change. I was told:
SafeWork is currently just a division of DCS. Under these arrangements, it becomes an executive agency in its own right. The secretary is not the head of that agency. The commissioner will be the head of that agency. It's a public service appointment that the Minister appoints because it's an agency head position. It will still be able—as any executive agency can—to enter into arrangements with the department for corporate support, if it so wishes, et cetera, but it will be an entity in its own right reporting directly to the Minister, not reporting to the secretary.
The bill empowers the newly formed executive agency to act as the regulator by removing references in the Act to the Secretary of the Department of Customer Service and replacing them with references to the SafeWork Commissioner. A further finding and recommendation of the McDougall review was that SafeWork had not previously taken sufficient input from key stakeholders, including unions and businesses. The bill therefore creates the SafeWork Advisory Council to provide advice to the regulator and the Minister when determining the strategic direction and priorities of SafeWork NSW.
The council will comprise at least eight, and up to 12, members, including three representatives of employer organisations, three representatives from unions to be nominated by Unions NSW, at least one expert in work health and safety and at least one representative of a work health and safety support, advocacy or awareness organisation or a person who has lived experience of workplace injury or death and represents the interests of injured workers and their families. The functions of the council are to monitor existing risks and trends in the field of work health and safety, advise the SafeWork Commissioner on the strategic direction and priorities of SafeWork NSW, and advise the SafeWork Commissioner or the Minister on any matters referred to the council by the SafeWork Commissioner or the Minister. The SafeWork Commissioner will be required to consider the council's advice when determining the strategic direction and priorities of SafeWork NSW. Those are all the technical bits.
The bill is necessary because SafeWork was failing to keep people safe at work. It has been a regulator more interested in gently encouraging and focusing on so-called education of employers, rather than an enforcer and prosecutor in defence of worker safety. It was in that context that the independent review of SafeWork NSW undertaken by the Hon. Robert McDougall, KC, was conducted. The review—and the Auditor‑General's report into SafeWork that ran concurrently—found that SafeWork was not fulfilling its regulatory functions. It found that SafeWork's triaging system, which decides whether complaints result in action, was inconsistent, with some serious complaints being downgraded to administrative responses. For example, letters were given to businesses rather than inspectors. It found a lack of transparency in how triage decisions were made; delays in investigations, sometimes influenced by SafeWork's capacity rather than merit; and under-enforcement where inspectors reported that too many cases were resolved through education and advice rather than prosecution, even in serious breaches.
In relation to investigations and prosecutions, the review found, firstly, that many inspectors felt that SafeWork pursued too few prosecutions, leading to a perception that businesses did not fear consequences; secondly, that inspectors and unions reported delays and inconsistencies in investigating serious workplace incidents; and, finally, that prosecution decisions were sometimes influenced by resource availability rather than the severity of the case. The review also found that government agencies were under-scrutinized. Many respondents felt that SafeWork was too lenient on public sector employers. SafeWork provides training for inspectors, businesses and workers, but the review found that the training materials were often complex and confusing, that there was inconsistency in fieldwork training for new inspectors, and that health and safety representative training did not always meet workers' needs.
It also found that some workers and unions found SafeWork's education efforts inaccessible and ineffective and that training for handling psychosocial risks, for example, workplace bullying and mental health hazards et cetera, was inadequate. The review found SafeWork was not independent as it was part of the Department of Customer Service, that many stakeholders did not trust SafeWork to regulate government agencies effectively, and that internal complaints handling, for example, workplace bullying within SafeWork, was inadequate.
Key recommendations were to reconstitute SafeWork as a statutory corporation, similar to the Environment Protection Authority; establish an independent board, with representation from employer and worker organisations, safety experts, and families of injured and deceased workers; ensure parliamentary oversight through regular reviews; and improve complaints handling for SafeWork employees, including external reviews of workplace misconduct cases. I flag that I will be moving an amendment in the Committee of the Whole regarding parliamentary oversight.
The report found that injured workers and families of deceased workers often felt excluded from SafeWork's decision-making. It found that there was poor communication with affected families about investigation progress and outcomes, and that health and safety representatives were not involved enough in decision-making. The long and the short of that report, and all reports looking into SafeWork, was that it was a regulator incapable of regulating effectively. Generally, SafeWork needs more independence to function effectively. The current governance model creates conflicts and reduces accountability. Training needs major improvements, particularly in psychosocial risks and investigations. That is clearly an unacceptable situation for the workplace safety regulator responsible for protecting the safety of the largest workforce in Australia.
The regulator responsible for independently holding to account the largest employer in the Southern Hemisphere, the New South Wales government, has been failing for years, and the workers of New South Wales have been paying the price. I have quoted the following statistics in debate previously but they are worth repeating because they show just how badly we have fallen behind in our protection of workers in this State. New South Wales was once a nation leader in worker safety, driven in no small part by our robust compliance and prosecution framework. In 2009-10, according to Safe Work Australia records, New South Wales had the lowest number of fatalities recorded over the past 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, and 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 was 50 per cent higher in New South Wales than the national average.
In the past 15 years we have gone from being the safest jurisdiction in Australia to being the least safe and having serious claims 50 per cent higher than the national average. That is a very concerning downfall, and it is clear the current regime is not working. If SafeWork NSW is restructured, well funded and properly governed, it can become a best practice workplace safety regulator. However, significant reforms are needed, particularly in enforcement, governance and worker engagement. I hope the bill will take us further in the right direction. Legislation means nothing if it is not accompanied with resourcing to match its aspirations, and so I look forward to seeing a big, no‑strings‑attached funding commitment in the upcoming budget that will see enforcement and compliance of workplace safety at the forefront. The Greens support the bill.
Abigail went on to pass the following amendment:
I move The Greens amendment No. 1 on sheet c2025-057F:
No. 1 Parliamentary oversight of work health and safety scheme
Page 4, Schedule 1. Insert after line 2—
[3A] Section 276C
Insert after section 276B—
276C Supervision of operation of work health and safety scheme by Parliamentary Committee
(1) As soon as practicable after the commencement of this section and the commencement of the first session of each Parliament, a committee of the Legislative Council must be designated by resolution of the Legislative Council as the designated committee for this section.
(2) The resolution of the Legislative Council must specify the terms of reference of the committee, which must relate to supervising the operation of the work health and safety scheme established under this Act.
(3) On the commencement of this section and until a committee is designated under subsection (1), the Standing Committee on Law and Justice is taken to be the designated committee.
The amendment seeks to bring the oversight of work health and safety laws within the remit of the Standing Committee on Law and Justice in exactly the same way that it has oversight of the workers compensation scheme, the Dust Diseases Scheme, the motor accident scheme and the Motor Accident Lifetime Care and Support Scheme, which is by virtue of section 27 of the State Insurance and Care Governance Act 2015. I thank the Parliamentary Counsel's Office for drafting the amendment at relatively short notice. There was back and forth about the best way to do it, but the amendment was drafted in this way to ensure that the Standing Committee on Law and Justice is the default committee for that oversight; and, for the purposes of ensuring that happens, the terms of reference of the Standing Committee on Law and Justice must be updated to reflect this legislation.
That second step is required for the oversight to take effect, which is why the amendment was drafted in this way. Paragraph (2) states that the Legislative Council "must specify the terms of reference of the committee". That is the effect of the amendment, which is about oversight. We are fortunate to have a government that is focused on prevention and talks a lot about it. We do not want workers to be injured in the first place. In the current law and justice committee inquiry into the suitability of the Dust Diseases Scheme, we have found that we have veered into that space, so it is the natural place for oversight of the agency. The ability for the committee to have a good look every parliamentary term at what our work health and safety legislation is doing would be incredibly valuable. That is the reason for the amendment. I commend it to the Committee.
Read the debate in Hansard here.
20 March 2025