Occupational Safety and Health Regulations 1996 - Motion

Extract from Hansard

Hon Alison Xamon; Hon Simon O'Brien; Hon Kate Doust

HON ALISON XAMON (East Metropolitan) [2.08 pm]: I move —

That, pursuant to section 42(4)(a) of the Interpretation Act 1984, the Occupational Safety and Health Regulations 1996 are amended by inserting the following after regulation 3.62(b)(ii) —

(iii) if the person holds a certificate of competency in the use of a portable appliance tester—the person’s certificate of competency number.

and, if so resolved, the Legislative Assembly be requested to pass a similar resolution.

I suspect that much of the substance of what I will be covering today will be revisiting much of the debate that we had 16 months ago when I brought in a disallowance motion for the Occupational Safety and Health Amendment Regulations (No. 5) 2010. When we had that debate, I alluded to this motion, which had been put on notice. This disallowance was negatived at the time, but I note that the Leader of the House indicated in his response that he had some sympathy with the position I put and the concerns I raised. The Leader of the House encouraged the matter to be brought up for resolution through particular channels, specifically the Commission for Occupational Safety and Health. I agree with the Leader of the House that it would have been a really good opportunity if this issue had been able to be resolved through that particular committee.

During the debate I alluded to the fact that this motion would sit on the notice paper. I indicated that I was really keen to see resolution of the matter and that at some point in the future I hoped that this motion would be unnecessary and withdrawn because the issue had been resolved. It is disappointing that the issue has still not been resolved and the need for the motion remains. I effectively have to use this mechanism to keep the issue on the agenda.

As I said in the disallowance motion debate, this issue is about the tagging of electrical equipment and how the competency of those who undertake the tagging is able to be tracked. The Leader of the House at the time of the disallowance debate identified that this issue was of particular concern to the Electrical Trades Union; he is absolutely correct. I have made no secret of my history with the ETU or, more accurately, the Communications Electrical Plumbing Union where I worked as a lawyer before I took my seat in this place. The CEPU is an ALP-affiliated union and has never played a role in my election to Parliament. Nevertheless, I am very proud of the work I was doing in the union. An important part of my role was to assess the impact of various regulatory regimes on the electrical trade and other trades. When I found out about the anomalies that the changes to these regulations had raised—I believe they are quite serious anomalies that emerged—I felt compelled to take this up as an issue because it was an area that I had been working on prior to taking my seat.

Apart from my professional background in this area, I have a couple of personal reasons why I have been unwilling to let this one go and why I keep trying to raise this issue to achieve, hopefully, an amicable resolution. They are both quite personal reasons. The first is an experience that I had dealing with the wife of an electrician who had been killed on the job. She had young children who were around the same age that I was when I lost my father. I found that dealing with their grief and trying to support them was really difficult, particularly as we knew that the circumstances of this father and husband’s death had been completely avoidable. It really had a profound impact on me and I found it very distressing. That particular incident became quite a defining one for me. They are by no means the only family members I have had to deal with who have lost loved ones on the job, but the point is that working with electricity is potentially quite dangerous work; it is really important that we do not become complacent about that. It is easy for us to forget how difficult it can be, because we have had a very good electricity safety regime in this state, which means ordinarily we can live with electricity quite safely. Those experiences have seriously informed my desire for stronger penalties and regulatory regimes surrounding occupational safety and health. That is one of the reasons I introduced the Occupational Safety and Health Amendment Bill 2010 to create the offence of industrial manslaughter, and why I have been pushing for stronger penalties.

The second reason I cannot quite let this go is even closer to home. My daughter’s dad is a qualified sparky and he specialises in working on large-scale construction projects in Perth. He works closely with non-electricians who have obtained the portable appliance tester competencies. He has personally expressed concern to me about the quality of the work of a couple of them—not all of them, but a couple. If people are incompetent—I am not delusional about this; I recognise that we can get people who are not fully competent in any industry—we need to ensure that those people can be easily identified and have their incompetence addressed. At the end of the day, we are talking about an area that is potentially quite dangerous. My daughter’s dad needs to come home alive. His life is important, and I do not want anything to happen to him.

During the disallowance motion debate, the Leader of the House encouraged the Electrical Trades Union in particular, with whom I share this concern, to continue to pursue this issue through the tripartite Commission for Occupational Safety and Health. As I mentioned, this was a reasonable suggestion. I reported that back to the ETU and it advised me that it did just that. It has attempted to continue to have this issue raised through that particular commission, but it has reported that although there seems to be a shared understanding that the existing situation is a problem, unfortunately—perhaps it is because there has been a change of membership of that particular group—the issue still has not managed to be progressed. I want to make it clear that it is not as though it has been through a process and knocked on the head.

People want this to be resolved, but it just does not seem to be getting anywhere. Therefore, here I am again trying to progress it.

For those members who have no idea what this motion is about or did not follow the previous debate, I will quickly summarise. OSH regulations require electrical equipment on construction sites to be tested and then tagged by the individual who tested it. However, testing and tagging of portable electrical equipment on construction sites no longer needs to be done by a licensed electrician. The requirement is now for it to be done by a competent person, which is a defined position. I want to be absolutely crystal clear: this motion does not seek to revisit the debate that occurred in the tripartite commission about the wisdom of enabling competency-based training as opposed to the comprehensive training ordinarily undertaken in a trades apprenticeship. Inherent potential risks for such an approach were well outlined by Hon Jon Ford in the disallowance debate when he described, for example, the capacity for a competency-trained individual to test equipment but fail to recognise more complex underlying safety hazards. I acknowledge that the unions lost that debate, so this does not attempt to revisit that. This attempts to ensure that the new competency framework that we now have still engages in the best occupational safety and health practices that it can. Working within that framework, two problems need to be addressed. Firstly, competent persons do not have to record identifying numbers on tags. This problem is addressed directly by this motion. The second one is that competent persons are not usually given ID numbers to identify themselves on construction sites. I acknowledge that this motion will not address that. If this motion were to get up, that second issue would still need to be resolved.

In his reply to the disallowance motion, the Leader of the House asserted that part of the problem preventing resolution was that the Australian Qualifications Framework does not require registered training organisations to put such numbers on their statements of attainment of competency. Certainly, it is correct to say that if the AQF were to require that, it would be one step towards being able to pretty easily resolve the situation. However, I would argue that despite the limitations of the AQF, there are still ways to introduce a fairly simple regime to ensure that competent persons are able to be identified and, therefore, that the tagging process can be followed through. The risks in failing to address this issue are the potential to create a lack of accountability and to enable individual workers to deny personal responsibility. It also removes the ability to make adequate checks of the workers and of the electrical equipment brought onto a construction site. Obviously, this is unacceptable and needs to be addressed. I do not think this was ever intended to be the effect of the change.

This motion touches on a small proportion of the workforce—that is, electrical workers on construction sites. It is a small workforce but one that has huge responsibilities because of the massive implications of accidents involving electricity. In 2009–10, there were 1 060 reported electrical shocks, 14 serious electrical accidents and two fatalities. We all agree that safety around the electricity regime is absolutely paramount. Electrical safety is really important for all construction workers on a site. In 2011, the construction industry made up 11 per cent of WA’s workforce. During 2009–10, the construction industry recorded 1 292 injuries and diseases resulting in time off work—the most recorded of all industries. This industry also recorded the highest number of severe injuries and diseases resulting in time off work during that same period. I would argue that a significant number of workers are potentially put at risk by the possibility of inaccurate testing, and that underqualified electrical workers present a particular risk.

Occupational safety and health regulations require electrical equipment on construction sites to be regularly tested. Testing ensures that the electrical equipment used at construction sites is safe so that construction industry workers are not exposed to dangerous electrical hazards. WorkSafe recognises that the testing of electrical equipment requires specific expertise and therefore can be carried out only by appropriately qualified or trained people who are able to recognise electrical hazards or potentially unsafe conditions.

Two types of testing are distinguished, requiring different levels of expertise: firstly, when a licensed electrician with electrical qualifications uses electrical test instruments to test circuits, insulation and equipment; secondly, when a person tests portable electrical equipment and certain other devices used on site by construction workers. This type of testing uses a device known as a portable appliance tester—a PAT—which is what we are talking about today. In the latter case, testing no longer needs to be done by a licensed electrician. The requirement now is for it to be done by a competent person. A ?competent person? is defined as someone who has completed the relevant unit with a training provider. This includes qualified electricians as well as other people who have completed a single training unit with a training provider. As at the end of 2010, there were at least 204 persons deemed competent but who were not trained electricians.

Hon Kate Doust: Sorry, what was that number?

Hon ALISON XAMON: It is 204, Hon Kate Doust. This was provided in tabled paper 3624 in answer to a question I asked. I reiterate that was by the end of 2010. These were trained by state training providers. There are another six private training providers in WA, and seven private training providers in other states that can also certify someone’s competency. Importantly, the number of persons deemed competent by these providers is unknown, but there are obviously more than 204 people trained in these competencies. That was an agreement with industry made at a national level when the Australian and New Zealand standard was rewritten. Again, I do not intend to contest that for the purposes of this motion. As I said, that battle has been lost and we are moving on. However, I want to consider the implications that flow on from that decision that have still not been resolved.

Once any equipment is tested on a construction site it must be tagged by the person who tested it. In the industry, this process is known as tagging. The process of tagging does two things: keeps an up-to-date record of the testing that has been carried out so that construction workers can be assured that the equipment is safe to use; and tells us who carried out the test so that each person working on site is responsible for their actions, and any faults can be traced back to the individual worker responsible. The problem is we have a double standard for tagging. When a qualified electrician tags, they are required to write down their name and licence or permit number on the tag so that they can personally be held responsible. We can always identify who is the person responsible for that tagging when they are testing and tagging complicated electrical systems or the portable electrical equipment that a competent person can test.

When a competent person who is not an electrician tags, they must write down their name, but there is no requirement for that person to write down any number uniquely identifying them or even their employer. We have two standards at the moment: one for electricians, which is a higher standard; and another for competent persons. The amendment proposes that a certificate of competency number be recorded on the electrical tag. That is a fairly simply request. It aligns the practices of competent persons with those of qualified electricians. We do not want the government to resolve this inconsistency by reducing the standards for electricians, who also do not record an identity number on the electrical tag.

Clearly, we should not be aiming for the lowest common denominator. We have a good regime currently in place for qualified electricians. As I mentioned, there are really good reasons tagging is done in a particular way so that we can identify the individual. I believe that not only maintaining that standard but also raising the standard of a ?competent person? is absolutely necessary.

There is an additional problem that makes this motion more complicated; that is, persons who complete the required qualification and are deemed competent are not being given an identifying number that they can record. This is one of the issues that the Leader of the House alluded to in his response to the previous disallowance motion. Until September 2011, WorkSafe advised that the main contractor on a site should be able to check that the so-called competent person had been issued with a statement of attainment or certificate from a registered training organisation and that they had an identifying number unique to the holder. That was in the WorkSafe ?Guide to testing and tagging portable electrical equipment and residual current devices at workplaces? dated November 2008. But there is no requirement to issue an identifying number and no database of those numbers, if they existed. When I pointed this out to the minister, WorkSafe promptly removed the references from the guide. I became aware of that through an answer to a question on notice, which is actually really frustrating because the original intent of having an identifying number and the capacity for employers to check it was a sound one. It was originally in the guide because it was recognised as important, and it was not a solution to the problem for WorkSafe to remove the references. The offending sentence is not in the guidelines anymore, and this has removed one of the important safety frameworks that had been recognised as needing to occur.

I understand that during discussions in the tripartite committee, the occupational safety and health regulations were amended on the understanding that competent persons would be identifiable. Now we realise there is no identity number and, rather than fix that problem, the reference to needing one has been removed because that was deemed easier; however, the original decision to allow unlicensed competent persons to test and tag electrical equipment has not been reassessed. That decision stands on an incorrect understanding of the responsibility and accountability of these competent persons.

I would like to give members a potential scenario, which is not an uncommon one, and I have certainly dealt with this. An individual, supposedly an electrician from Ireland, could come to Australia under the supplementary labour scheme. That person holds no electrician’s licence in Australia, but rather than get Australian accredited training or testing, they decide to obtain a certificate of competency and become a competent person. Let us say this person’s name is Michael. On site, Michael attaches two plugs to the same lead, one on either end. Someone plugs in one end, not realising the other end is now live and exposed, and a third person grabs hold of the plug and gets an electric shock to the hand. Michael has tagged his equipment but he has since left the building site and is not traceable solely on the basis of his name, because Michael is a very common name and not everyone has a surname like Xamon. For all we know, Michael could still be working in Western Australia.

This scenario, which could easily happen, highlights three issues, the first of which is traceability. Because the regulations ask for a name, this assumes that competent persons will be traceable by their name, but I would argue that that is not the case. It is not sufficient to rely just on the name of a person on a construction site that has potentially hundreds of employees. How many J. Smiths might there be on a building site the size of the huge BHP Billiton Ltd tower that was just completed on St Georges Terrace? Once an individual leaves the worksite it becomes almost impossible to look for J. Smith all over Perth or even further afield. The second issue is responsibility. Responsibility is the reason we need to be able to trace an individual. Frankly, if something does go wrong, action needs to be taken against that individual. They could be threatened with losing their licence and means of livelihood if they perform their work inadequately. I think that is a pretty strong incentive for people to do the right thing and for workers to make sure that they are being thorough and diligent. If we locate an individual, we also need to check that person’s skills and ability before they are allowed to continue to work. It would also be a good way to identify whether there appears to be a systemic problem with particular registered training organisations or even TAFEs. The third issue is competency. The need to check someone’s competency arises when people are hired so that we know they definitely are competent to perform those tasks. We also need to know that the electrical equipment that is brought onto a construction site has been previously tested and tagged offsite and we can check that the test was conducted by a competent person. I sent a letter to the Minister for Commerce, Hon Simon O’Brien, who responded by saying that he believed the responsibility to ensure that equipment has been properly tested lies with the employer, main contractor or self-employed person at the construction or demolition site where the equipment is to be used. I believe that it is also the responsibility of individual employees. We need to know who is personally responsible for ensuring that each person working on a site is competent in practice and that all the electrical equipment used on the site is safe. I think that the new regime actually makes it harder for quality employers—there are plenty of them—to also make sure that their employees are competent. Importantly, the Minister for Commerce also assures me that a record of the testing data for all equipment on site is given to the main contractor when the equipment is brought on site. The Minister for Commerce has stated that this is so the contractor can satisfy himself of the duty to ensure that all electrical equipment is safe to operate. All these checks and inquiries are important, but in the circumstance I have described, what exactly can the contractor check? The names on the records are not the people who are on site and therefore cannot be checked against the list of employees. Unlike the registered numbers of qualified electricians, these cannot be checked against the registration numbers or identification numbers on a central record, so the tags are essentially anonymous. Also, no guarantee can be given that either the names on those tags are the names of people who have been deemed competent or that the equipment has been properly tested and that any faults or incompetency can be traced back to the person who is actually responsible.

Western Australia’s Training Accreditation Council keeps a permanent register—the Client Qualifications Register—which records information on the qualifications issued by registered training organisations. Hon Simon O’Brien said in his letter that employers can access this information to verify a person’s qualification. However, access to information on this register is available only with the approval of the person concerned. Therefore, it is not available to the contractor who checks the tagging record for the equipment that is brought on site. In addition, this is a cumbersome and restrictive process and I am not convinced that it is fair on employers. By comparison, electrical contractors and restricted electrical workers can be searched online through EnergySafety’s licensing information system, although that is not the case for competent persons who are less qualified.

The regulators have not been unaware of this issue; this motion has been on the notice paper since 24 November 2010. The Minister for Commerce and the Minister for Training and Workforce Development have corresponded with me and have had an opportunity to rectify this small, but I think potentially quite dangerous, gap in the occupational safety and health framework, but here I am still asking for it to be rectified. All workers have the right to be protected from work-related dangers, including those created by their less-qualified fellow workers, and governments have a clear responsibility to appropriately regulate industries, particularly dangerous industries, to ensure the protection of workers. There are gaping holes in the regulatory regime and I am concerned that they are holes through which workers’ safety might be able to fall. I do not want to wait until a horrible accident occurs or hear about another family suffering as a result of this, because this is avoidable. We can see that this is a potential danger and do something about it now. Every 30 minutes, one worker in Western Australia is injured seriously enough to take one or more days off work. On average, a person is killed every 18 days as a result of a traumatic work-related accident. In 2010–11, 21 traumatic work-related fatalities were recorded in Western Australia. That is 17.1 work-related fatalities per million workers, which is a sharp increase from the 7.7 fatalities per million workers that was recorded in 2008–09.

Our system of OSH laws, licensing requirements and regulations are designed to protect workers in their workplaces and stop, or as far as possible prevent, these accidents from occurring. However, this particular regulatory regime is flawed and inadequate. I am again asking for WorkSafe WA and EnergySafety to get together and to please sort out this issue. I am asking for it to be put back on the agenda. There can be all sorts of creative solutions to this problem. I do not think it has to be about trying to change the Australian Qualifications Framework. Maybe the Minister for Commerce could reclassify portable appliance testing as requiring a high-risk work licence, which means that it would require an identifier. As I said, perhaps that is a way to get around the AQF. Another solution may also include the Minister for Training and Workforce Development ensuring that those who achieve a certificate of attainment also have an identifier, which was always the original intention. I recognise that we now have a cohort of people with these competencies and that it would be very difficult to retrospectively apply that provision. However, if the minister were able to do something along those lines, even it were just a matter of dealing with the regime from here on in, either the Western Australian Office of Energy or the Department of Commerce could administer it. I do not think that is complicated or difficult. Plenty of regimes require a person to get a qualification and a licence. Since the integration of high-risk work in vocational education and training, people can do units of competency in whatever the high-risk work area is and then apply for high-risk work licences. If the regulators are happy with the training and assessment provide by the TAFEs and the RTOs, an assessment would not be required to give people a unique identifier upon receiving a statement of attainment; they would need to do only the administrative work. It is not too hard and does not have to involve the AQF.

This issue can be resolved administratively and I am calling on the minister to see whether there is a way in which this can be progressed fairly quickly. Certainly, it would be good to bring this matter back to the tripartite committee as a matter of urgency and ask its members to put their heads together and figure out how best to do it. I do not want to understate the potential for serious accidents to occur as a result of this. We need to make sure that those who are trained as competent go through the same type of regime as our electricians. We deserve to know that that will happen and I think the families of the workers who work with them also deserve to know that that will happen. Time is marching on and I am asking for this matter to please be resolved.

Hon Alison Xamon: Minister, by interjection, can I explain that the reason I put the motion in was actually on advice from parliamentary counsel. I have the correspondence here. They had advised that that was a way in which I could deal with that, considering that I did not want to disallow the entire regulatory regime; I really wanted to deal with only a very small element within the regulations that had been proposed. So I thought I should clarify for the house that that was the reason that was undertaken. It was because of the advice that I received.

HON ALISON XAMON (East Metropolitan) [3.22 pm] — in reply: In summary, I thank the opposition for its support, but I also want to thank the Minister for Commerce for the suggestion that this issue go back to the Commission for Occupational Safety and Health for further discussion.

As my motion indicated, I was not suggesting that the proposed amendment would resolve the entire issue. During my contribution I flagged that I recognised that even if the amendment was passed, related issues would still have to be resolved. I think that the undertaking that this will go back to the commission is a very positive step forward, and I was very pleased to hear that, particularly because it seems that there are no shared understandings of the history and how we got to this point. The advice I have is that the ETU has never felt that this issue has actually been resolved—even in the negative—and it is very strongly of the view that it has simply fallen off the agenda somehow. The ETU also feels that when this was revisited by the commission after the disallowance motion, which was the undertaking also given by the government at that time, again it did not get resolved; it just fell off. I hope this will be the final time it needs to be revisited by the commission; hopefully it can be resolved.
I think it was useful for the minister to put the understood history, certainly from the department’s perspective, on the record because that means that the other parties, if they have a different understanding—I understand that some do—know exactly what they are dealing with. I think that is very useful.

I reiterate that I want to see parity, but, again, not in terms of the lowest common denominator. I absolutely agree with the opposition that we should be looking to tighten up standards, particularly around electricity, not lessening them. It is my understanding that some issues have arisen, particularly in Victoria, as a result of the new national regime. It is certainly my fervent hope that we do not replicate the mistakes that are starting to emerge there.

I do not agree that the name is a primary identifier. As I said in my contribution—Hon Kate Doust agreed—I think the only unique identifier will be a number, which is why it is very important that we try to come up with a regime. As I said in my contribution, I accept and agree with what the minister said in that the Australian Qualifications Framework cannot be unilaterally changed. It would have been good if some regime had been put in place at the time that the statement of attainment regime was, but that did not happen. That is why I was suggesting that there may be other ways to resolve this issue so that there can at least be an identifying number for people who have achieved these competencies.

As I say, I appreciate there is a difference in the shared understanding of how we got to this point. It had been my intention to withdraw this motion. I was expecting that this would have been resolved in the preceding 16 months; it has not been, and that is why it has continued. But I remain hopeful, given the minister’s undertaking that this will be revisited, that there will be a positive resolution to this issue so that we can make sure that the safety regime in this state is the best of all states.

Question put and negatived.