Page 1556 - Week 06 - Thursday, 2 July 2020
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they took reasonable precautions and exercised due diligence to prevent the offence from being committed.
While this is consistent with the intent of the model legislation, no other jurisdiction requires the defendant to show that they had knowledge of the actual offence. Other jurisdictions, such as Tasmania, Western Australia and the Northern Territory, only require that the defendant show that they took reasonable precautions or exercised due diligence to prevent the offence.
Queensland and South Australia also consider whether the defendant was in a position to influence the employee’s conduct. For example, if the employer contracted the job to an external agent and the agent committed an offence, or if an offence was committed by an employee in the course of their employment as a result of serious or wilful misconduct by the employee, the employer would not be held liable. There are no similar considerations in the proposed amendments for the ACT. This, in my view, is a severe oversight.
With regard to the Work Health and Safety Act, the opposition will be supporting the changes that relate to asbestos management. Our major concerns relate to clause 106 and the subsequent related clauses under the work health and safety permit holders section. These give work safety permit holders the ability to take photographs, films or audio or video recordings when exercising their right of entry powers in a workplace. This right also extends to any other work health and safety contravention observed by a permit holder whilst exercising a right of entry at a workplace or any suspected issue they believe may exist. This is an extraordinary power that has the potential to be weaponised in a vexatious way. This aspect of the legislation does not sit well with me or my opposition colleagues.
Over the almost eight years that I have sat in this place, I have, unfortunately, seen a number of examples of the unwarranted scrutiny, bordering on harassment, of employers by trade unions that had nothing at all to do with the rights of the worker but had more to do with a particular vendetta against an individual or a corporate entity, typically as a result of a dispute in EBA negotiations.
There is no provision in this amendment to allow persons captured in a recording to raise privacy concerns. There is not even a requirement for permit holders to wait for a specific period of time before releasing information contained in a recording to allow anyone captured by the recording to raise concerns with the PCBU and/or the permit holder. There is also a significant inconsistency with the Workplace Privacy Act relating to workplace surveillance. Under the Workplace Privacy Act, employers are required to provide written notice to employees of surveillance before it commences.
In the bill before us, this clause permits work safety permit holders to take a much more relaxed approach. There is no time frame for notice to be given, so for all intents and purposes, the permit holder could give notice well after a recording has been taken, if they ever give it at all. This is a stark inconsistency. There is also no indication that a person captured in a recording will be permitted to have access to or see the recording before it is used by the permit holder. This prevents the person from
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