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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
OCCUPATIONAL HEALTH AND SAFETY AND OTHER LEGISLATION AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Employment and Workplace
Relations, the Honourable Julia Gillard MP)
OCCUPATIONAL HEALTH AND SAFETY AND OTHER LEGISLATION AMENDMENT BILL 2009
OUTLINE
The Bill amends the Occupational Health and Safety Act 1991; Occupational
Health and Safety (Maritime Industry) Act 1993; Safety, Rehabilitation and
Compensation Act 1988 and
Seafarers Rehabilitation and Compensation Act 1992.
The principal amendments to the Safety, Rehabilitation and Compensation
1988 Act ('SRC Act') will:
o enable Comcare to access the Consolidated Revenue Fund (CRF) to pay
compensation claims in respect of diseases with long latency period
(such as asbestos related disease) where the employment period was pre-
1 December 1988 but where the condition did not manifest itself until
after that date.
o re-instate claims arising from off-site recess injuries;
o allow for compensation for medical expenses to be paid, where payment
of other compensation is suspended;
o allow for time limits for claim determination;
The Bill amends the Occupational Health and Safety Act 1991 to provide that
'lifts' are interpreted as being within the definition of 'plant' for the
purposes of the Act. Legal advice has been received that 'lifts' may not
always come within the Act's definition of 'plant'.
The Bill also makes a number of minor technical amendments to the Acts,
other than the SRC Act, which are consequential on the commencement of the
Legislative Instruments Act 2003. The amendments do not in any way affect
the operation of the amended Acts.
FINANCIAL IMPACT STATEMENT
It is estimated that the amendments to the
Safety, Rehabilitation and Compensation Act 1988 (SRC Act) reinstating
coverage for off-site recess breaks will cost Comcare $1.7m for 2009/10 and
the same for the forward years (adjusted for indexation of 4.5% p.a.). It
is estimated that some 23% of medical costs (which are 25% of total claim
costs) would otherwise be claimable through either Medicare or the PBS.
Therefore the proposal would result in a net savings to the PBS of $130,000
for 2009/10 and the same amount indexed for medical cost inflation over the
forward years.
The remaining amendments are expected to have a nil financial impact.
NOTES ON CLAUSES
Part 1-Preliminary
Clause 1-Short title
This is a formal provision specifying the short title of the Act.
Clause 2-Commencement
This clause specifies when the various provisions of the Act commence
Clause 3-Schedule(s)
This clause provides that an Act that is specified in a Schedule is amended
or repealed as set out in that Schedule. The Schedule contains amendments
to the Occupational Health and Safety Act 1991; Occupational Health and
Safety (Maritime Industry) Act 1993; Safety, Rehabilitation and
Compensation Act 1988; and Seafarers Rehabilitation and Compensation Act
1992.
Any other item in a Schedule operates according to its terms
Schedule 1-Amendment of the Occupational Health and Safety Act 1991
Schedule 1 of the Bill contains amendments to the Occupational
Health and Safety Act 1991 (OHS Act). The principal amendments
amend the definition of 'plant' to include 'lift'.
Schedule 1 of the Bill also makes a number of technical amendments
to the OHS Act as a consequence of the commencement of the
Legislative Instruments Act 2003. These amendments do not in any way
affect the operation of the provisions of the OHS Act.
Item 1-Subsection 5(1) (subparagraph (a)(ii) of the definition of
Government business enterprise)
Proposed item 1 will amend the subsection by omitting the reference
to 'instrument published in the Gazette' and substituting a
reference to 'legislative instrument'.
This is a technical amendment as a consequence of the commencement
of the Legislative Instruments Act 2003. This amendment does not in
anyway affect the operation of the provisions of the OHS Act.
Item 2-Subsection 5(1)
Item 3-Subsection 5(1) (at the end of the definition of plant)
Proposed item 2 will insert a definition of 'lift' in subsection 5(1). The
definition will make clear that 'lifts' are plant and aligns the definition
of 'lift' with that used in clause 4 of the National Standard for Plant.
Proposed item 3 will, by way of example, make clear that the definition of
'plant' in the OHS Act includes a lift.
Legal advice has been received that lifts may not meet the definition of
plant under the OHS Act and hence the need for the amendment.
Item 4-Subsection 5(8)
Proposed item 4 will repeal the subsection as the subsection refers to
section 46A of the Acts Interpretation Act 1901 which was repealed by the
Legislative Instruments Act 2003. The subsection is repealed because it is
redundant.
Item 5-Subsection 6(2)
Proposed item 5 is similar to item 1 but will amend the subsection by
omitting the reference to 'notice in writing' and substituting a reference
to 'legislative instrument'.
Item 6-Subsection 6(4)
Proposed item 6 will repeal the subsection as the subsection refers to
section 46A of the
Acts Interpretation Act 1901 which was repealed by the
Legislative Instruments Act 2003. The subsection is repealed because it is
redundant.
Item 7-Subsection 7(2)
Proposed item 7 is similar to item 1 but will amend the subsection by
omitting the reference to 'notice in writing' and substituting a reference
to 'legislative instrument'.
Item 8-Subsection 7(4)
Proposed item 8 will repeal the subsection as the subsection refers to
section 46A of the
Acts Interpretation Act 1901 which was repealed by the Legislative
Instruments Act 2003. The subsection is repealed because it is redundant.
Item 9-Subparagraphs 9(2)(c)(i) and (ii)
Item 10-Subsection 9(5)
Proposed items 9 and 10 are similar to item 1 and will amend subparagraphs
9(2)(c)(i) and 9(2)(c)(ii) and subsection 9(5) by omitting references to
'notice in writing' and substituting references to 'legislative
instrument'.
Item 11-Paragraph 9(5)(b)
Proposed item 11 is similar to item 1 and will amend paragraph 9(5)(b) by
omitting references to 'notice' and a substituting reference to
'legislative instrument'.
Item 12-Subsection 9(6)
Proposed item 12 will repeal the subsection as the subsection refers to
section 46A of the
Acts Interpretation Act 1901 which was repealed by the Legislative
Instruments Act 2003. The subsection is repealed because it is redundant.
Item 13-At the end of section 19
Section 19 of the OHS Act deals with the duties of suppliers in relation to
plant and substances. Proposed item 13 will extend section 19 to clarify
that it does not apply to the owner of a workplace in relation to the
supply of a lift in the workplace. The purpose of the proposed amendment
is to avoid undue interference with the operation of the occupational
health and safety laws of a state or territory which already impose duties
on owners of buildings.
Item 14-Subsection 70(5)
Item 15-Subsection 70(6)
Proposed item 14 will repeal the subsection as the provision deals with
publishing codes of practice in the Gazette and these matters are now
covered by the Legislative Instruments Act 2003.
Proposed item 15 will amend subsection 70(6) to provide that an approved,
or amended, code of practice or a notice of revocation of a code of
practice is a legislative instrument.
Schedule 2-Amendment of the Occupational Health and Safety (Maritime
Industry) Act 1993
Schedule 2 of the Bill makes a number of technical amendments to the
Occupational Health and Safety (Maritime Industry) Act 1993 (OHSMI
Act) as a consequence of the commencement of the Legislative
Instruments Act 2003. These amendments do not in any way affect the
operation of the provisions of the OHSMI Act.
Item 1-Subsection 109(5)
Proposed item 1 will repeal the subsection as the Legislative
Instrument Act 2003 now deals with the requirements for publication
and tabling in Parliament of an approved, amended or revoked code of
practice.
Item 2-Subsection 109(6)
Proposed item 2 will amend subsection 109(6) to provide that an approved,
or amended, code of practice or a notice of revocation of a code of
practice is a legislative instrument.
The amendment will omit the reference to 'disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901' and substitute
a reference to 'legislative instrument'.
Schedule 3-Amendment of the Safety, Rehabilitation and Compensation
Act 1988
Schedule 3 of the Bill contains amendments to the
Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The principal
amendment will:
. enable Comcare to access the Consolidated Revenue Fund (CRF) to pay
compensation claims in respect of diseases with long latency period
(such as asbestos related disease) where the employment period was pre-
1 December 1988 but where the condition did not manifest itself until
after that date.
. re-instate claims arising from off-site recess injuries;
. allow for compensation for medical expenses to be paid, where payment
of other compensation is suspended;
. allow for time limits for claim determination;
Part 1-Amendments
Item 1-Paragraph 6(1)(b)
Proposed item 1 will amend paragraph 6(1)(b) to allow claims to be made
under the SRC Act which arise from injuries that occurred off-site during
recess breaks. This type of coverage was provided prior to 13 April 2007
and is now being reinstated.
Item 2-After subsection 36(4)
Item 3-After subsection 37(7)
Item 4-After subsection 50(5)
Proposed items 2, 3, and 4, will amend subsections 36(4), 37(7), and 50(5),
to exclude from the suspension provisions a claimant's right to
compensation for medical treatment under section 16.
Currently, the right to compensation under the SRC Act is suspended if a
claimant refuses or fails without a reasonable excuse to undertake a
rehabilitation program. Compensation under the SRC Act includes medical and
related benefits. The suspension of medical benefits under the Act can have
counterproductive effects to early rehabilitation and return to work. The
purpose of this amendment is to remove such counterproductive effects.
Excluding compensation for medical treatment was recommended by the '2008
Review of
Self-insurance Arrangements under the Comcare Scheme' ('the DEEWR Report').
Item 5-Before subsection 61(1)
Item 6-At the end of section 62
These items would allow for the setting of time limits for the
determination of a claim and for the making of a reconsideration of a
determination.
Item 5 would provide that a determining authority must consider and
determine a claim under section 14 of the SRC Act, within the period
prescribed by the regulations. A claim under section 14 is a claim that
relates to initial liability.
Item 6 would provide that decisions in relation to a claimant's request for
a reconsideration of a determination must be made within the prescribed
time limits.
The actual time limits will be set by regulation.
Item 7-After paragraph 90B(a)
This item will amend section 90B of the SRC Act by inserting new paragraph
(ab).
Section 90B was intended to give Comcare access to the Consolidated Revenue
Fund (CRF) to pay for all of its undischarged liabilities, and associated
expenses, for claims attributable to employment before 1 December 1988.
These liabilities are described in paragraph 90B(a) as 'any liability that
is taken, by section 128, to have been incurred by Comcare'.
As an indirect result of references to section 128 by the Full Federal
Court in Comcare v Etheridge [2006] FCAFC 27 (15 March 2006), Comcare's
access to the CRF under section 90B to discharge its liabilities for long-
latency injuries claims was closed off.
The amendments in new paragraph 90B(ab) would restore Comcare's access to
the CRF to pay for these claims.
The sorts of long-latency injuries envisaged by paragraph 90B(ab), are
those which would be attributable to an event or process occurring during
an employee's employment before 1 December 1988 but would not have
manifested themselves or caused impairment or death until after that date.
The example in paragraph 90B(ab) refers to mesothelioma arising from the
inhalation of asbestos fibres. While asbestos-related diseases would
typically fall within the envisaged paragraph 90B(ab) injuries, the
amendment is intended to cover a broad spectrum of injuries. (Note that
'injury' in the SRC Act also covers diseases.)
Item 8-Paragraph 90B(b)
This proposed amendment is consequential on item 7 and would provide
for the payment, from the CRF, of Comcare's administrative expenses
associated with its liabilities referred to in
paragraphs 90B(a) and (ab).
Item 9-Subparagraph 90C(1)(a)(i)
This proposed amendment is consequential on item 7 and provides that
subparagraph 90C(1)(a)(i) refers to paragraph 90B(ab) in addition to
paragraph 90B(a).
Part 2-Saving provision
Item 10-Saving-Payments under section 90B
The Court decision in Comcare v Etheridge had the indirect result that
section 90B could not be interpreted as giving Comcare access to the CRF to
pay for its liabilities arising from disease claims attributable to
employment before 1 December 1988 but not manifesting until after that
date.
This meant that Comcare's drawings on the CRF to pay for liabilities were
retrospectively invalidated.
The proposed amendments in this item set up a mechanism for the recovery
and off setting of the CRF drawings.
Paragraphs (1)(a) and (b) provide that the section applies in relation to
amounts paid out of the CRF to Comcare under section 90B which were
invalidly paid at the time (the relevant amounts) but which, if the
proposed amendments in Item 7 above had been in force, would have been
validly paid.
Subsection (2) proposes that the relevant amounts already paid to Comcare
may be recovered by the Commonwealth as a debt.
Subsection (3) proposes that Comcare is entitled to be paid an amount,
equal to the relevant amounts referred to in paragraphs (1)(a) and (b)
above, out of the CRF.
Subsection (4) proposes that the Commonwealth may off-set the debt in
subsection (2) against Comcare's entitlement under subsection (3).
Subsection (5) would appropriate funds from the CRF for the purposes of the
proposed item.
Schedule 4-Amendment of the Seafarers Rehabilitation and
Compensation Act 1992
Schedule 4 of the Bill makes a number of technical amendments to the
Seafarers Rehabilitation and Compensation Act 1992 ('the Seafarers
Act') as a consequence of the commencement of the Legislative
Instruments Act 2003. These amendments do not in any way affect the
operation of the provisions of the Seafarers Act.
Item 1-Paragraph 10(1)(b)
Proposed item 1 will amend the paragraph by omitting the reference
to 'written notice' and substituting a reference to 'legislative
instrument'.
This is a technical amendment as a consequence of the commencement of the
Legislative Instruments Act 2003. This amendment does not in any way affect
the operation of the provisions of the Seafarers Act.
Item 2-Paragraph 10(1)(b)
Proposed item 2 is similar to item 1 and will amend the paragraph by
omitting the reference to 'the notice' and substituting a reference to 'the
instrument'.
Item 3-Paragraph 28(6A)(b) (definition of Specified rate per kilometre)
Proposed item 3 is similar to item 1 and will amend the paragraph by
omitting the reference to 'by written notice' and substituting a reference
to 'by legislative instrument'.
Item 4-After subsection 42(3)
Item 5-Subsections 42(7), (9) and (10)
Proposed items 4 and 5 deal with the application of the Legislative
Instruments Act 2003 to the Seacare Authority's 'Guide to the Assessment of
the Degree of Permanent Impairment' (the Guide).
New subsection 42(3A) makes it clear that the Guide, or variation or
revocation of the Guide, on approval by the Minister, is a legislative
instrument.
Notwithstanding that the legislative instrument is made on the day of
Ministerial approval, the legislative instrument takes effect in accordance
with section 12 of the Legislative Instrument Act 2003.
Proposed item 5 is a consequential amendment to proposed item 4. It repeals
subsections 42(7), (9) and (10) because, as the approved Guide is held to
be a legislative instrument, these subsections are redundant.
Item 6-Subsection 44(3)
Proposed item 6 is similar to item 1 and will amend the subsection by
omitting the reference to 'notice in writing' and substituting 'legislative
instrument'.
Item 7-Paragraph 49(6B)(b) (definition of specified rate per kilometre)
Item 8-Paragraph 50(2B)(b) (definition of specified rate per kilometre)
Item 9-Paragraph 66(4B) (definition of specified rate per kilometre)
Proposed items 7, 8 and 9 are similar to item 1 and will amend paragraphs
49(6B)(b), 50(2B)(b) and 66(4B) by omitting references to 'specifies by
written notice' and substituting references to 'by legislative instrument,
specifies'.
Item 10-Subsection 66(6)
Proposed item 10 is similar to item 1 and will amend the subsection by
omitting the reference to 'written notice' and substituting a reference to
'legislative instrument'.
Item 11-Subsection 83A(5) (definition of specified rate per kilometre)
Proposed item 11 is similar to item 1 and amends the subsection by omitting
reference to 'specifies by written notice' and substituting ', by
legislative instrument, specifies'.
Item 12-Subsection 83A(9)
Proposed item 12 is similar to item 1 and amends the subsection by omitting
reference to 'written notice' and substituting 'legislative instrument'.
Item 13-Subsection 130(3)
Proposed item 13 is similar to item 1 and will amend the subsection by
omitting the reference to 'notice in writing' and substituting a reference
to 'legislative instrument'.
Item 14-Subsection 139(7) (definition of specified law)
Proposed item 14 is similar to item 1 and will amend the subsection by
omitting the reference to 'written notice' and substituting a reference to
'legislative instrument'.
Item 15-Section 142
Proposed item 15 will repeal the section as the Legislative Instruments Act
2003 has made the section redundant.