Thursday, 24 February 2022
Bills
Workplace Safety Legislation and Other Matters Amendment Bill 2021
Workplace Safety Legislation and Other Matters Amendment Bill 2021
Introduction and first reading
The DEPUTY PRESIDENT (17:20): I have a further message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Accident Compensation Act 1985, the Dangerous Goods Act 1985, the Equipment (Public Safety) Act 1994, the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019, the Legal Profession Uniform Law Application Act 2014, the Occupational Health and Safety Act 2004, the Workplace Injury Rehabilitation and Compensation Act 2013 and the Victims of Crime Assistance Act 1996 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms PULFORD: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms PULFORD (Western Victoria—Minister for Employment, Minister for Innovation, Medical Research and the Digital Economy, Minister for Small Business, Minister for Resources) (17:21): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Workplace Safety Legislation and Other Matters Amendment Bill 2021 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
Relevant to human rights, the Bill:
• amends the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 to improve compensation arrangements for workers with certain work-related injuries that are progressive in nature and improve compensation entitlements for family members of deceased workers;
• amends the Occupational Health and Safety Act 2004 (OHS Act) in relation to notifiable incidents and prohibition notices;
• amends the Victims of Crime Assistance Act 1996 in relation to the conduct of hearings by the Victims of Crime Assistance Tribunal;
• amends the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 to expand the presumptive right to compensation to eligible vehicle and equipment maintenance employees; and
• relevant to human rights, the Bill amends the Legal Profession Uniform Law Application Act 2014 strengthen governance arrangements for the Victorian Legal Services Board (VLSB).
Human rights issues
Improved compensation arrangements and entitlements
The Bill makes a number of amendments to various Acts to improve compensation arrangements for workers with certain work-related injuries that are progressive in nature as well as improve compensation entitlements for family members of deceased workers. These amendments follow a review by WorkSafe that found that some injured workers who make claims for impairment benefit (IB) compensation or seek damages at common law may experience undesirable outcomes under the current legislation. This is due to the current legislative framework not fully accounting for the progressive nature of some silica-related diseases and the uncertainty as to any further silica-related diseases the injured worker may develop over their lifetime.
The proposed amendments make the following changes to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013:
• prescribing certain progressive diseases which are to be eligible for a revised (IB) entitlement;
• allowing for IB payments to be made for injured workers with eligible progressive diseases that have not stabilised;
• providing that injured workers requiring a lung transplant are entitled to a minimum level of assessed impairment;
• allowing injured workers with eligible progressive diseases who experience further an increase in whole person impairment (WPI) associated with their condition to make subsequent IB claims;
• enabling injured workers with silica-related diseases to make one subsequent application for common law damages if they develop a subsequent silica-related disease;
• extending eligibility for family counselling services to family members of workers who are diagnosed with an eligible progressive disease;
• extending the duration of a pension for a dependant child under a disability from 16 years to 25 years;
• allowing for a provisional payment following a work related death to be made to the guardian of a dependant spouse or partner;
• providing for the payment of burial, cremation and funeral expenses incurred outside of Australia; and
• providing for continuation of household help services after death for a period of three months.
General promotion of Charter rights
While these amendments principally promote economic and social rights (such as the right to work and entitlement to access adequate worker compensation), which are ordinarily beyond the scope of the civil and political rights protected by the Charter, improving outcomes and access to schemes which support injured workers (and their families) are relevant to the promotion of a number of rights in Charter, including:
• the right to equality (s 8), to be discussed in more detail below relating to reducing discrimination;
• the right to life (s 9), which encompasses a general obligation on the State to take positive steps to protect life, including by enacting schemes that uphold public welfare and safety;
• the right to privacy (s 13), which is wide in scope, and includes protecting a person’s interest in the freedom of their personal and social sphere, including their personal development, identity, social relations and psychological integrity, personal security and mental stability - all components that may be affected by workplace injury;
• the right to protection of family (s 17(1)), including the positive requirement on the State to provide protection to families as the fundamental group unit of society, and ensuring families are not deprived of support in unreasonable circumstances; and
• the right to fair hearing (s 24), including the right to access a court to seek redress, through the amendments to remove a bar on seeking common law damages in relation to subsequent development of disease and align common law statutory timeframes to reflect civil jurisdiction operations.
I note that in order to ensure that the scheme is able to accurately anticipate the volume and value of claims made under these revised provisions and to be consistent with the proposed inclusion of cancers as it relates to the Firefighters’ Presumptive Rights Compensation Act 2019, the Bill limits these new entitlements to applying to any eligible disease diagnosed on or after 1 July 2016. This limit is necessary to ensure these proposed changes to compensation entitlements can be costed with certainty and implemented effectively without any risks to the ongoing viability of the scheme. The scheme’s experience with silicosis claims suggests the majority of claims presenting for IB compensation will not be excluded.
Removing unfairness and discrimination
The Bill makes a number of amendments that have the effect of alleviating unfairness and potential discrimination in accessing compensation entitlements, including:
• extending the weekly pension for children with a disability from the age of 16 to the age of 25 regardless of their ability to engage in full time education or an apprenticeship, in recognition of their additional needs by way of their disability;
• providing for compensation payments to a minor or disabled person to be paid to a trustee, which facilitates the delivery of better services to families of deceased workers; and
• removing existing limits on payment of overseas costs for burial, cremation or repatriation, which increases access to compensation for families of culturally diverse workers or those with no enduring entitlement to residency or citizenship.
These amendments promote the right to equality.
Right to equality (s 8(3))
Section 8(3) provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. This right provides that all laws and policies are applied equally, and do not have a discriminatory effect. ‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010, which includes the attribute of disability, age and race. Direct discrimination occurs where a person treats a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute, and that is not reasonable.
The above amendments reduce disadvantage on persons with an attribute by removing legislative barriers and other obstacles that prevented compensation from being paid in certain circumstances. Accordingly, these amendments promote the right to equality.
Expanding workplace incident notification obligations
Clause 47 amends s 37 of the OHS Act to provide, among other things, that an incident constituted by the illness (as prescribed by the regulations) of a person is an incident to which Part 5 of the OHS Act applies. This will oblige an employer or self-employed person to notify the Authority of such incidents.
In addition, the amendments also amend the threshold for incident notification under s 37(2) from incidents which expose a person ‘in the immediate vicinity to an immediate risk’ to that of exposing a person ‘to a serious risk to the person’s health or safety emanating from an immediate or imminent exposure to’ a listed incident. This is expected to require duty holders to report a greater variety of dangerous incidents to the Authority.
The amendments relating to illnesses may require an employer to disclose personal information, including health information about an individual to the Authority and thus is relevant to the rights to privacy (s 13) and the freedom of expression (s 15).
Right to privacy (s 13)
Section 13(a) provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. This includes a right to informational privacy in relation to personal affairs, including information about a person’s health status and/or exposure to disease.
An interference will be lawful if it is permitted by a precise and appropriately circumscribed law. An interference will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.
In my view, these amendments are reasonable and appropriate to the legitimate aim sought. Exposure to highly contagious and potentially serious diseases, which could cause serious illnesses or pose a serious health and safety risk have the potential to place employees and others at serious risk of harm. The objective of the amendment is to protect workers and other persons from harm by requiring duty holders to report illnesses which may be acquired at the workplace. This will give effect to the rights of others, including the right to protection of life, and will align Victoria with the model national laws on workplace safety. Any personal information provided to the Authority will be subject to existing restrictions on disclosure of information to ensure privacy is protected to the greatest extent possible. Accordingly, I consider that the right to privacy is not limited by these amendments.
Right to freedom of expression (s 15)
Section 15 of the Charter Act provides that all persons have the right to freedom of expression, which includes a right not to impart information.
The powers to compel duty holders to provide the type of information discussed above engages the right to freedom of expression, however, it is my opinion that these powers would fall within the exceptions to the right in section 15(3) of the Charter, as reasonably necessary to respect the rights of other persons, and for the protection of public health.
As discussed above, the amendments are necessary to protect workplace health and safety and to facilitate the Authority to monitor the operation of measures taken and arrangements put in place to ensure occupational health, safety and welfare, to monitor and enforce compliance with the OHS Act, and to better understand emerging trends and better target the relevant duty holders with education and compliance activities. The current limitation of the notification provisions which does not capture certain incidents posing a serious risk impedes the Authority’s ability to proactively expose serious health and safety risks before a person is placed at risk of harm or these incidents cause a serious injury or death. Accordingly, I consider these amendments to the incident notification requirement to be compatible with the right to freedom of expression.
Power to issue prohibition notice
Under section 112 of the OHS Act, inspectors may issue a prohibition notice where they reasonably believe that an activity is occurring or may occur in a workplace that involves or will involve an immediate risk to the health and safety of a person. Clause 49 amends s 112 by amending the scope of circumstances in which the power can be exercised from activities posing ‘an immediate risk’ to activities posing ‘a serious risk’ to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. As a prohibition notice prohibits the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector has certified in writing that the matters giving rise to the risk have been remedied, this is relevant to the rights to privacy and property. Clause 50 makes similar amendments to the power of an inspector to give directions to a person at a workplace pursuant to s 120 of the OHS Act, empowering such directions to be made where reasonably necessary to do so because of a serious risk (as opposed to an ‘immediate risk’) to the health or safety of any person emanating from an immediate or imminent exposure to a hazard. Clauses 54 and 55 make similar amendments to the thresholds requirements for issuing prohibition notices or giving directions in relation to failures to comply with COVID-19 directions made under the Public Health and Wellbeing Act 2008.
Rights to privacy (s 13) and property (s 20).
As discussed above, s 13(a) of the Charter provides that a person has the right not to have their privacy or home unlawfully or arbitrarily interfered with, which may include their freedom to engage in activities to which a prohibition notice or directions may be issued to prevent. Similarly, s 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law. Deprivation of property can include any interference with a person’s enjoyment of their property rights, which may be caused by a prohibition notice or direction issued by an inspector.
However, I am of the view that any additionally interference with rights, through expanding the circumstances in which prohibition notices and directions can be issued, will be reasonable and justified. The objective serves an important public welfare purpose by allowing the issuing of prohibition notices where inspectors are able to form the reasonable belief that an activity is occurring or which may occur at a workplace which involves a non-immediate yet serious risk to the health or safety of a person.
This will provide further protection to workers and other persons engaging in workplace activities who may be exposed to serious risks to their health or safety in circumstances where the relevant activity may not necessarily involve an immediate risk to health or safety despite posing a serious risk. Such circumstances could include but are not limited to silicosis arising from exposure to crystalline silica, infectious diseases such as COVID-19, and psychosocial hazards (e.g. bullying in the workplace). The amendments will also ensure that the Victoria OHS scheme is aligned with model national law on workplace safety. Any person served with a prohibition notice may still seek review of the issue of the notice, and a notice will cease to have effect once an inspector has certified that the matters that give rise to the risk have been remedied. I am satisfied that there are no less restrictive means available to achieve this important purpose of safeguarding safety, noting that the existing threshold for serving prohibition notices or giving directions have meant that some activities posing serious risks to employee safety were not being prohibited or prevented in circumstances where the risk was serious, but not immediate.
Extending time period for internal review of decisions
Section 127 of the OHS Act provides for review of specified decisions under the Act, including inspector decisions that may limit a person’s human rights such as the issue of a prohibition or improvement notice.
Currently, s 128(4) of the OHS Act requires the Authority to make a decision on an application for review within a period of 14 days (or 7 days for prohibition notices and improvement notices). The existing provisions do not provide for any additional time for review in circumstances where the Authority requests further information from the applicant.
Clause 52 amends s 128 to provide for the cessation of the decision review period in circumstances were the Authority seeks further information from the applicant, until the applicant provides the further information requested. This may have the effect of increasing existing limits on rights impacted by decisions made pursuant to existing powers under the OHS Act, by extending the period of time before a decision is affirmed, varied or set aside by the Authority.
However, I consider any increase in the extent of limitations on rights to be reasonably justified. The amendments will ensure the Authority has sufficient time and information to provide a comprehensive review of a decision, including requesting further information when appropriate to do so, and where the complexity of a matter requires. This will ultimately enhance the procedural fairness of the process by ensuring that any new information is able to be properly taken into account by the Authority. It also aligns the review process with the model national laws on workplace safety. Importantly, once an applicant has provided the requested information, the review period recommences, which protects against any undue delay. It will also reduce the occurrence of arbitrary outcomes such as where a decision is deemed to be affirmed due to the expiry of the review period in circumstances where the Authority was awaiting the provision of further relevant information. Accordingly, I consider this amendment to the review time period to be compatible with the Charter.
Reforms to the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019
The Bill will amend the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (FPRC Act) to extend the presumptive rights coverage to Fire Rescue Victoria (FRV) and Country Fire Authority (CFA) vehicle and equipment maintenance employees.
Right to privacy (section 13)
Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked. An interference with privacy will not be unlawful where it is permitted by a law which is precise and appropriately circumscribed. Interferences with privacy will not be arbitrary provided they are reasonable in the particular circumstances. The proposed amendment to the FPRC Act may engage the right to privacy, as WorkSafe will request for an expert opinion from the advisory committee to determine whether a vehicle and maintenance employee has attended fires to the extent reasonably expected. Any engagement of the right to privacy would be reasonable and consistent with section 13 of the Charter.
Right to recognition and equality before the law (section 8)
Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. ‘Discrimination’ under the Charter means discrimination within the meaning of the Equal Opportunity Act 2010, on the basis of a protected attribute set out in section 6 of the Equal Opportunity Act 2010, which includes employment activity.
Under section 8 of that Equal Opportunity Act 2010, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Section 9 of the Equal Opportunity Act 20210 provides that indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons on the basis of a protected attribute, and that is not reasonable.
The proposed amendments will provide an additional benefit to certain individuals based on their employment as a vehicle and equipment maintenance employee. Employment activity is protected within section 6 of the Equal Opportunity Act 2010. The additional benefit provided to this cohort of individuals is justified based on evidence that attending at fires is associated with an increased risk of developing cancer.
Further, the proposed amendments will also enable career, volunteer, vehicle and equipment employees to count part years of service as full years, ensuring that employees are not disadvantaged by the seasonable nature of their work.
Amendments to the Victims of Crime Assistance Act 1996
The amendments to the Victims of Crime Assistance Act 1996 (VOCA Act) engage the following human rights under the Charter:
• The right to equality before the law (section 8(3))
• The right to reputation (section 13(b))
• The right to a fair and public hearing (section 24(1))
Right to equality before the law (s 8)
Section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.
The amendments may limit the right to equal protection of the law of alleged offenders in family violence and sexual assault matters, in that they reduce their prospects of being notified of a Victims of Crime Assistance Tribunal (Tribunal) hearing and participating in that hearing—compared to alleged offenders in other types of matters.
Such a limit is likely reasonable by a compelling policy justification that victims in such matters are more likely to be distressed or harmed by the notification, or attendance of, offenders at Tribunal hearings. The Victorian Law Reform Commission (VLRC) review indicated that there are widespread concerns that the prospect of offenders being notified of hearings can be enough to discourage victims from applying for assistance. Avoiding these consequences may provide a compelling justification for limits on offenders’ rights.
In my opinion, any limitation of the right is reasonable and justified under section 7(2) of the Charter to enable victim survivors of family violence and sexual offences to seek the support they need from the Tribunal without the fear of the alleged offender being notified of, or attending, hearings.
Right to reputation (s 13)
Section 13(b) of the Charter provides that a person has the right not to have his or her reputation unlawfully attacked.
The proposed amendments may reduce the ability of some alleged offenders to refute allegations made against them and therefore limit their reputational right. However, in current practice, the Tribunal already has the discretion to not notify an alleged offender of a hearing, and also has the discretion to not allow alleged offenders to attend. This means that under the current VOCA Act, alleged offenders are not guaranteed the ability raise issues about the impact on their reputation.
The VOCA Act prohibits materials related to a hearing from being published. However, the VOCA Act does not (and is not able to) prohibit people from having conversations with each other, such as a victim sharing information with their friends or family. Alleged offenders retain the right to seek recourse under defamation laws should they wish to raise issues about the impact on their reputation.
In my opinion, any limitation of the right is reasonable and justified under section 7(2) of the Charter because of the benefit of furthering victims’ interests and access to the Tribunal, and still allowing alleged offenders recourse under defamation laws.
Right to a fair and public hearing (s 24)
Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
It could be argued that the proposed amendments do not limit the right to a fair and public hearing. Although the Tribunal proceedings are ‘civil proceedings’, generally, offenders will often not be a ‘party’ to those proceedings—unless the offender is deemed to be a party under section 35 of the VOCA Act, where the Tribunal considers that the offender has a ‘substantial interest’ in the matter. Even in this scenario, the position of an offender in such proceedings is not akin to a party in typical civil proceedings—whose legal rights and liability are directly affected by those proceedings. By contrast, as above, Tribunal proceedings may only affect an offender’s interests by damaging their reputation.
It could be argued that this right is not limited because an offender is not truly a ‘party to a civil proceeding’ within the meaning of that right. In any event, if this right is engaged, a limit on this right is reasonable and justified under section 7(2) of the Charter by reference to the benefit of promoting victims’ interests and access to financial assistance, which is the fundamental purpose of the Tribunal.
Amendments to the Legal Profession Uniform Law Application Act 2014
The Bill engages the right in section 18 of to participate in the conduct of public affairs. For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to section 7(2) of the Charter.
Right to participate in the conduct of public affairs
Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through chosen representatives. Further, section 18(2)(b) provides that every eligible person has the right, and is to have the opportunity, without discrimination to have access, on general terms of equality, to the Victorian public service and public office.
The right to participate in public life lies at the core of democratic government. The conduct of public affairs covers all aspects of public administration, including the formulation and implications of policy at state levels.
This right is relevant in so far as the Bill will have implications for the membership of the VLSB, which is a public body that, along with the Legal Services Commissioner, is responsible for regulating the legal profession in Victoria.
Clauses 35, 37 and 44 of the Bill may engage this right on the basis that it provides that the Governor in Council can, on the advice of the Attorney-General, appoint a barrister and two solicitors as members of the VLSB. This represents a change from the current election process for lawyer members of the Board. The clause also specifies conditions of eligibility, including that the members be of not less than 5 years’ standing, which was an existing requirement for lawyer members to stand for election.
In my opinion, clauses 35, 37 and 44 will not limit this right. The right protects the ability of eligible persons to access, without discrimination and on terms of equality, the Victorian public service. Clause 35 does not impose discriminatory conditions on appointment. The conditions simply go to a person’s eligibility for appointment, which section 18(2)(b) recognises as a valid limit on the scope of the right. The conditions, which pertain to qualifications and experience, are appropriate to ensure that the VLSB is constituted by members with the skills and experience to regulate the legal profession. The Bill retains the ability of the profession to have input into the membership of the VLSB, given that appointees will be drawn from panels nominated by the Victorian Bar and the Law Institute of Victoria.
Clause 39 of the Bill may engage this right on the basis that it provides that the Governor in Council may remove a lawyer member or the Chairperson of the VLSB in the event of disciplinary action. However, in my opinion, clause 39 will not limit this right. The clause does not limit access to the public service or public office in a manner which discriminates on the basis of a protected attribute. Rather, this clause is intended to strengthen the integrity and public standing of the VLSB in circumstances where it has an important public role in regulating the legal profession.
The Hon Ingrid Stitt MLC
Minister for Workplace Safety
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms PULFORD: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Bill makes a range of amendments to the Occupational Health and Safety Act 2004, Dangerous Goods Act 1985, Equipment (Public Safety) Act 1994, Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 to:
i. improve compensation arrangements for workers with silicosis and similar occupational diseases and deliver on aspects of the Government’s silica action plan;
ii. amend the threshold for issuing prohibition notices and directions to better capture serious risk activities;
iii. include a broader range of matters to be notifiable incidents;
iv. improve entitlements for the families of deceased workers;
v. clarify that funds collected from infringement notices are to be paid into the WorkCover fund; and
vi. make technical and procedural amendments to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013.
These amendments are designed to improve outcomes for injured workers and their families, enhance scheme operations and increase WorkSafe’s ability to prevent and respond to workplace safety incidents.
The Bill also makes changes to the Victims of Crime Assistance Act 1996 to remove barriers for people applying to the Victims of Crime Assistance Tribunal (VOCAT) scheme by prohibiting alleged offenders from being notified of, or attending, any VOCAT hearing in matters related to family violence or sexual offences, before the establishment of a new victims of crime Financial Assistance Scheme.
The Bill will amend the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (the FPRC Act) to:
i. amend extend presumptive rights coverage under the FPRC Act to Fire Rescue Victoria (FRV) and Country Fire Authority (CFA) vehicle and equipment maintenance employees;
ii. change the method for calculating eligibility qualifying periods to count part year of service as a full year of service; and
iii. allow periods of service as a FRV, CFA or forest firefighter or as a vehicle and equipment maintenance employee to be combined.
Finally, the Bill will amend the Legal Profession Uniform Law Application Act 2014 (LPULA Act) to strengthen the integrity of the Victorian Legal Services Board (VLSB), ensuring lawyer members of the VLSB are not the subject of actual or potential disciplinary action at the time or their appointment and can be removed if they are subject to disciplinary action during their term of office.
I will now address each of these amendments in more detail, turning first to the workplace safety related amendments.
Disease Compensation Arrangements
The first element of the Bill delivers on an element of the Government’s comprehensive action plan to address and prevent unsafe silica exposure. The Bill makes amendments to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 to improve compensation arrangements for workers with silicosis and similar occupational diseases and deliver on aspects of the Government’s silica action plan. These amendments will allow injured workers with silica-related diseases to make a further common law application for damages if they develop a subsequent silica-related disease. These changes also improve access to impairment benefit compensation, including lump sum payments, for workers with silicosis and similar occupational diseases.
Workers suffering from silicosis are currently not able to pursue common law claims, where they developed further related silica diseases after an initial award. The current claims process also poses difficulties for workers with progressive diseases, such as silicosis, in accessing impairment benefit compensation due to the nature of their disease in not demonstrating stabilisation and being subject to rapid deterioration.
The Bill seeks to address the identified issues by allowing workers with certain occupational diseases which deteriorate over time and can progress quickly, to receive further compensation treatment.
The amendments made by the Bill allow for further impairment benefits to be made, where a worker has previously received a benefit and their condition deteriorates further. These changes also provide for waiving of the current requirement to demonstrate that a disease has stabilised for a period of 12 months for workers with specific diseases to access impairment benefit compensation. These eligible diseases are to be prescribed under a legislative instrument, which allows for flexibility if and when the state of knowledge evolves.
The Bill also makes further amendments to the impairment benefit assessment process, allowing workers who receive a lung transplant due to their work related injury to be entitled to a deemed minimum whole person impairment (WPI) assessment of 30 per cent. The amendments also allow for an assessment of WPI prior to the transplant occurring. Currently workers requiring a lung transplant due to their work-related injury or illness must wait until after the transplant has occurred and for their condition to stabilise before being assessed for impairment benefits, which can often result in a lower assessment. This change allows for consideration of the ongoing impacts of a transplant.
Importantly, the Bill will also allow for the provision of family counselling services to the families of workers with these eligible conditions.
Family Support Benefits
Currently, under worker’s compensation legislation, a child with disability is not eligible to receive a child pension after the age of 16, whereas full time students or apprentices are eligible for the pension until they reach 25. To address this anomaly, the Bill makes amendments to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 to provide for improved compensation entitlements for the families of deceased workers.
The changes extend the current pension for children with disability from the age of 16 to the age of 25. This change will be partially retrospective and allow for eligible dependants who are between the ages of 16 to 25 years at commencement to receive back payments for the period they would have been entitled to.
These amendments will ensure persons with disability are eligible for provisional payments following a work-related death and that these payments can be made through an appointed guardian.
The Bill will also continue household help services payments already being received by a worker with an accepted claim where they die as a result of their work-related injury for six months after their death. Extending household help services will provide greater assistance with the family’s transition.
The Family Support Benefits changes also allow for the payment for overseas funeral costs following a work-related death. Currently these costs are limited to those expenses incurred within Australia. This is in recognition of the many Victorian workers who are not born in Australia and may be repatriated overseas following their death.
The amendments relating to family support benefits and disease compensation are intended to commence on 1 July 2022, to allow sufficient time for implementation and system changes.
Prohibition Notices and Directions
The Bill will make amendments to the Occupational Health and Safety Act 2004 to amend the threshold for issuing prohibition notices and directions by WorkSafe inspectors to better capture serious risk activities. These changes will allow inspectors to issue a prohibition notice, or give a direction, where they reasonably believe that an activity involves or will involve a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard.
These changes will allow WorkSafe inspectors to prohibit or issue directions relating to certain activities which do not pose an immediate risk, yet could still lead to serious health and safety consequences. These changes also consider cumulative risk activities, such as those activities which can cause exposure to crystalline silica and can lead to serious life-long illnesses.
The Bill also amends COVID-19 temporary measures in the Occupational Health and Safety Act 2004 to mirror the proposed changes to prohibition notices and directions. This means that inspectors will continue to be able to issue prohibition notices and give directions for failure to comply with a direction relating to the COVID-19 pandemic under the Public Health and Wellbeing Act 2008 whilst the temporary measures are in effect.
Incident Notification
The Bill amends the Occupational Health and Safety Act 2004 to include a broader range of matters considered to be notifiable incidents. These amendments will allow for a broader range of serious risks to be brought to WorkSafe attention and ensure that WorkSafe is empowered to respond to these risks and prevent serious injury or illness in the workplace.
To achieve this, the Bill seeks to amend the list of notifiable incidents to allow for prescribing illnesses, to which an incident constituted by the illness of a person will be notifiable.
The Bill will also provide that incidents relating to the failure or damage of certain plant will also be notifiable where the plant is prescribed under regulations.
Consistent with the threshold changes for prohibition notices and directions, the Bill will make amendments to capture incidents that expose a person to a serious risk to the person’s health or safety emanating from an immediate or imminent exposure to certain circumstances (near miss incidents).
Consultation with relevant stakeholders will occur on the development of the regulations relating to notification of serious illnesses and matters relating to specific plant.
Infringement Notice Funding
Delivering on the Victorian Government’s election commitment to introduce infringement notices for certain offences under the Occupational Health and Safety Act 2004 and Regulations, from 31 July 2021, WorkSafe inspectors can issue infringement notices to duty holders who are alleged to have committed any of the prescribed offences in the regulations.
The Bill inserts a provision into the Occupational Health and Safety Act 2004, Dangerous Goods Act 1985and Equipment (Public Safety) Act 1994respectively to specify that funds from infringement notices collected under each of these Acts are to be paid into the WorkCover Authority Fund. This amendment provides certainty about where these funds are directed and supports the operation of the infringements scheme introduced in July 2021.
Technical and Procedural Amendments
Finally, in respect of the Workplace Safety portfolio, the Bill will make a number of technical and procedural amendments to the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013. These changes allows for a suspension of time during pre-trial proceedings in common law processes over the end of year shutdown period; provide that references to party and party costs within the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 are amended to provide for payment of legal costs on a standard basis, update the relevant period test in the deemed contractor provisions which will allow for WorkSafe to consider contracts which occur over two or more financial years, ensure injured workers with no current work capacity residing overseas are no longer paid in arrears and are paid in the same manner as local workers and correct a cross referencing error in the Workplace Injury Rehabilitation and Compensation Act 2013 to the Tax Administration Act 1997.
Firefighter’s Presumptive Rights Amendments
Vehicle and equipment maintenance workers are an integral part of Victoria’s fire services, maintaining and repairing firefighting equipment, including at the fireground where they are exposed to the same carcinogens that career and volunteer firefighters are exposed to.
Currently, this cohort of employees is not entitled to rely on the existing presumptive right to compensation available under the Firefighters’ Presumptive Rights Compensation and Fire Services Legislation Amendment (Reform) Act 2019 (FPRC Act).
The amendments in the Bill will enable vehicle and equipment maintenance employees, who suffer from specified cancers, to rely on a presumption that their employment caused the cancer, in the absence of evidence to the contrary. The amendments will apply to those employees, employed by Fire Rescue Victoria (FRV) and Country Fire Authority (CFA), who have duties involving the mechanical, auto electrical or fitting and turning maintenance and repair of firefighting vehicles and equipment.
The Bill will also include amendments to ensure consistency and appropriate integration between the FPRC Act and the presumptive rights amendments under the Forests Act 1958, which were recently passed by this Parliament.
The recent presumptive rights amendments to the Forests Act 1958, will enable a part year of service to count as a full year for the purposes of calculating whether a forest firefighter has served for the requisite qualifying period. This provision recognises that a significant number of forest firefighters work seasonally. To ensure equity between the Forests Act framework and the FPRC Act framework, this Bill makes an amendment to the FPRC Act to ensure that a part year of service also counts as a full year for career and volunteer firefighters and vehicle and equipment maintenance workers.
This Bill also introduces amendments to enable claimants to combine their periods of service as a career firefighter, volunteer firefighter, forest firefighter and a vehicle and equipment maintenance employee in order to demonstrate they have served the required qualifying period. The amendments will ensure that claimants are not disadvantaged if they have served in a number of different capacities.
Amendments to the Victims of Crime Assistance Act 1996
The Victims of Crime Assistance Tribunal (Tribunal) provides financial assistance to victims of violent crime under the Victims of Crime Assistance Act 1996 (VOCA Act).
Currently, the Tribunal may notify alleged offenders and allow them to appear at hearings where they have a ‘legitimate interest’ or ‘substantial interest’ in a victim’s application for assistance. In 2018, the Victorian Law Reform Commission (VLRC) reported on its review into the VOCA Act.
The VLRC report provided extensive commentary about the problem of offender notification, particularly in regard to the chilling effect it has on survivors of sexual assault or family violence in making an application to the Tribunal. This finding also aligns with the findings of the Royal Commission into Family Violence.
Accordingly, the Bill amends the VOCA Act with the aim of prohibiting alleged offenders from being notified of, and attending, hearings for matters that involve family violence or sexual offences.
These changes will be of great significance to family violence and sexual assault survivors and send a strong public message that we support them. Survivors should no longer be fearful of making an application to the Tribunal.
The amendments bring forward a key finding of both the VLRC report and the Royal Commission into Family Violence before the establishment of a new Financial Assistance Scheme which is currently being developed. The amendments make a start on one of the things that matter most to the wellbeing and safety of victim survivors who already face significant barriers to accessing justice.
Victorian Legal Services Board appointment of lawyer Board members
The Victorian Legal Services Board (VLSB) together with the Victorian Legal Services Commissioner (VLSC) is responsible for regulating the legal profession in Victoria. At present, there is a real risk that lawyers who are subject to integrity concerns or disciplinary action by the VLSC may be elected to the VLSB.
The Bill will strengthen the VLSB’s governance arrangements to ensure that lawyer members of the VLSB are subject to the same robust probity checks as non-lawyer members and that they are not the subject of actual or potential disciplinary action at the time or their appointment to the VLSB and can be removed if they are subject to disciplinary action during their term of office.
The amendments to the Legal Profession Uniform Law Application Act 2014, replace the current process of electing lawyer members to the VLSB with an appointment process similar to the one used to appoint non-lawyer members to the VLSB (who are currently appointed by the Governor in Council on the recommendation of the Attorney-General). To preserve the legal profession’s interest in VLSB appointees, the Law Institute of Victoria and the Victorian Bar will be asked to nominate candidates for appointment.
Consistent with the appointment process, the amendments will also allow the Governor in Council to remove lawyer members from the VLSB if they become the subject of disciplinary action during their term of office.
Conclusion
To conclude, this Bill makes a number of changes to Victoria’s workplace safety and compensation framework that are necessary to improve compensation outcomes for Victorian workers and their families, ensure the effective operation of Victoria’s workplace health and safety laws and supports WorkSafe to improve operations and deliver on its objectives. These amendments will take effect from Royal Assent, except for the disease compensation and family support changes which are intended to come into operation on 1 July 2022.
The Bill also ensures that survivors of family violence and sexual assault are not subject to further trauma when seeking assistance.
This Bill will also expand the existing presumptive rights framework to provide coverage to eligible vehicle and equipment maintenance workers suffering from cancer and strengthen the VLSB’s governance arrangements.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:21): I move:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.