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Legislative Assembly for the ACT: 2003 Week 10 Hansard (23 September) . . Page.. 3487 ..
MR STEFANIAK (continuing):
... an omission to act by an employer or senior officer can arise from 'anything in the employer's [or senior officer's] possession or control' or from 'any undertaking of the employer [or senior officer]'.
These paragraphs, to the committee, seem very generally expressed and it would be desirable to limit their application to the employers and senior officer's responsibilities and undertakings as employers and senior officers. Hence the recommendation.
In relation to recommendation 2, a number of submitters made some comments that, effectively, an employer's recklessness or negligence should relate specifically to the employee who has died and the circumstances of that death. Hence the recommendation:
... paragraphs 49C (c) (i) and (ii) and 49D (c) (i) and (ii) be reviewed to clarify the meaning of the phrase 'or any other worker of the employer'.
In relation to recommendation 3, two of the committee, my colleagues Mr Hargreaves and Ms Tucker, recommended the bill be proceeded with. I dissented from that. I will come to that shortly.
In relation to recommendation 4, we noted this bill wasn't limited to business corporations and government; it applied to a wide range of entities, incorporated and unincorporated; voluntary organisations, charities and religious groups and a wide range of community organisations are to be subject to it. We noted that, when similar legislation was being considered in Victoria, not-for-profit organisations were excluded. We received very little evidence on this issue, hence our recommendation:
... the government advise the Assembly as to why agencies, such as charities, voluntary associations and community groups have been included.
In the only real bill that is similar to this that has even got to the stage of getting to a parliament, it was excluded.
Recommendation 5 looked at the issue of contractual relationships, and we recommended the government:
... review section 49B (3) to ensure that it does not obstruct fully informed contracting arrangements entered into in good faith which attribute responsibility for workplace safety to one party to the contract.
In other words, if a subcontractor knew exactly what was required of them, if something went wrong, they could not have it hung on the actual contractor.
Recommendation 6 recommended:
... the definition of 'agent' be reviewed to clarify that an employer, having satisfied him- or herself that a sub-contractor had the necessary skills, knowledge and experience, is entitled to rely on the contractual undertakings of a sub-contractor that a workplace will be conducted in full compliance with Occupational Health and Safety laws.
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