Mark Buttigieg – SO52 – Transport Asbestos Register – 27 February 2020 – Full debate

Mark Buttigieg – SO52 – Transport Asbestos Register – 27 February 2020 – Full debate

February 29, 2020 1 By Kailee Schamberger


Private Member’s Business Item Number 437
Outside the Order of Precedence standing in the name of Mr Buttigieg relating to a further
order for papers concerning transport asbestos registers. Thank you Mr President. For the House’s benefit, I inform members
that this is the second time this order has been put before the House. I understand my colleague the Hon. John Graham has previously had similar Standing
Order 52 applications rejected by the House, so members might wish to consider that context. The reason a previous Standing Order 52 request
was rejected was a technical interpretation of the Act that said the Minister did not
have direct control over the sub-entities from which we were seeking vital information—namely,
asbestos registers and health management records. Workers in the rail sector in particular rely
on that information in order to tell when they are in environments that are not conducive
to their good health. In other words, they are able to say, “The
place is riddled with asbestos. We need to know where the asbestos is and
we need to know what our exposure is and whether or not we are going to be subsequently covered
down the track if anything comes of it.” We have had to rephrase the Standing Order
52 application in order to specify the sub-entities that the Minister apparently does have control
over so that it would be accepted. It is clear under the Act that the Minister
does have direct control, but we are not going to quibble with that. We got advice from the Clerk to say that the
technicality was correct, so we have resubmitted the application. I will give members some background. The unions in this sector, particularly the
Electrical Trades Union but also the Rail, Tram, and Bus Union and others, have been
asking for these things for about two years. All we get from State rail and the sub-entities
associated with the Transport cluster is obfuscation such as, “We haven’t got the register”, or,
“We might have part of it”, or, “It’s going to take 600 hours worth of resources to provide
the registers.” These documents are required by legislation
to be present so that if I turn up to a site I can look at a spreadsheet or a register
and say that this site has got asbestos and we need to do A, B and C to deal with it. For example, we may need to wear protective
equipment, get the asbestos removed, stop work or whatever it may be. However, workers cannot do those basic things. They do not know where the asbestos is because
the employer will not tell them. They are required by law to have the registers. The union has tried to do it through Government
Information (Public Access) Act [GIPAA] requests and through correspondence with RailCorp and
the other entities mentioned in the Standing Order 52 application. During the budget estimates process in August
my colleague the Hon. Peter Primrose asked Howard Collins, the CEO
of RailCorp, if he could provide it. The answer was, “Yes, we will get those to
you forthwith.” There has been no correspondence and no return
other than a couple of scant management plans, which is not what we are after. Workers deserve to have access to the information
so they can make an informed decision about their exposure to a deadly substance. It is basic stuff. We have been through the union corresponding
with the employer, the GIPAA requests, the budget estimates process and now the rejection
of a Standing Order 52 application based on a technicality. I think it is more than reasonable for this
House to pass this motion so that we can get hold of the asbestos registers and give the
employees some comfort by the fact, first, that the registers exist and, secondly, that
they are accurate so that when the employees are at their workplaces they can make informed
decisions about how to deal with a deadly workplace substance. In this day and age, with the resources we
have as a modern society, we should not be putting people in situations where they do
not have access to this information. When it has been asked for through official
channels, we should not have to come to this House on bended knee for a simple production
of the documents that are required by legislation. Let us debate the motion, but I appeal to
the common sense and goodwill of members and ask that they agree with this proposition. We have been through the proper process. We do not want to make unnecessary requests
and drain government resources if we do not have to; however, in this case we have been
forced down that path. To be constantly pushed back by bureaucratic
delay and excuses is not good enough. If we have to use the House to extract the
information for the benefit of people in the workplace, we will. We have done so and will continue to do so. I ask members for their support for this reasonable
request. I commend the motion to the House. The Government opposes the motion. From the outset I make it clear to all members
that the Government recognises the right of the House to call for papers for legitimate
purposes. But the Government objects to the rewriting
of history in the manner that the honourable member has just sought to do. If members of the House vote in favour of
this motion—I make this point very seriously in relation to transport asbestos registers—they
will be responsible for diverting critical resources away from the community, including
bushfire-affected communities, for no reason other than the laziness of members opposite. The members of this place also need to know
that in order to comply with this resolution some staff at Sydney Trains, who are currently
working with regulators to investigate the cause of the tragic derailment of the XPT
train last week in Victoria, will now need to stop work on that project just because
the Opposition is too lazy to get its drafting correct the first time. Shame on it. To suggest that there is some secret plan
by the Government to prevent the House from holding it to account is absolutely untrue. Those opposite are finally waking up to the
fact that their repeated lack of attention to detail in how they draft their notices
of motions has meant they have failed to yield the treasure troves of documents they seem
to want. It is not the Government’s responsibility
to do the work of those opposite for them. The documents that those opposite requested
last year from the wrong agency have nothing to do with the recent machinery of government
changes. It is, however, convenient for them to mislead
the House by claiming it is. Nothing has changed in the transport cluster
other than the merger of Transport for NSW with Roads and Maritime Services. The fact remains that those opposite are lazy
in their drafting and have gotten their notices of motions wrong time and time again. I also make some critical points. There is a call for papers within six days. Public sector agencies with management control
of a workplace are required to keep asbestos registers on site. There are hundreds upon hundreds of workplaces
in the transport cluster across the State that hold asbestos registers and other legislative
compliance registers. There are also hazmat registers at each of
the hundreds of transport-owned properties across the State. In addition, contractors maintain asbestos
registers at each of the thousands of infrastructure projects the Government is delivering across
the State. I seek an extension of time. Turning to legislative compliance in paragraph
(b) and paragraph (e), if this is read to include all registers it could include any
register under any Act and would include heritage registers, biodiversity registers, health
monitoring records, and the list goes on, as well as asbestos information. These all have to be reviewed and re identified. We are talking about thousands upon thousands
of documents. It will take thousands of hours to respond
to this overly broad order. To expect that all documents can be obtained
and tabled within six days is quite frankly absurd. We are talking about a number of work places
ravaged by bushfires, which will now be required to stop their critical work restoring and
delivering services to their communities. It is simply impossible for the transport
cluster to comply within six days. Members are now on notice that any return
to this order cannot be complied with in the time frame required. I speak to this motion on behalf of The Greens
and support the intent and thrust of the Opposition call for papers. There are few more important things than getting
the asbestos register right and that it is readily available to employers and unions
so they can ensure the health and safety of the workforce of all of these entities, whether
it is Sydney Trains, TrainLink, State Transit Authority, Sydney Ferries, RailCorp or Sydney
Metro. I will not traverse the history of why we
are here. It is unfortunate that there was not more
collaboration and assistance between the Government and the Opposition to get to the thrust of
what was required from the original Standing Order 52 request. If there were technical drafting deficiencies,
we could have avoided a lot of these ongoing fractious debates by the Government saying:
If this is what you are intending to do, these are the entities you should address it to,
this is where the information is being held, rather than the shadow boxing that we have
had between the Opposition and the Government. It is made harder by the extraordinary number
of machinery of government changes to the new six super agencies that have been created. If the Government were more open and aware
of these kinds of technical issues with the drafting it would avoid a lot of fractious
debate. I urge the Government to engage in that process
more fully in the future. I beg your pardon? Maybe I will not move these amendments, if
the Government has an issue. However, we have had a look at the scope of
the documents requested by the Opposition and we can see that there are some documents
that are needed for timeliness. I think six days is reasonable for the asbestos
registers. That should be online and readily available. If it is not, the Government has a major problem. We do not have an issue with the six days
for the asbestos registers, but in consultation with both the Opposition and the Government
we would suggest a number of amendments that come to a halfway solution on this. I will read on to the record our proposed
amendments. I move:
That the question be amended as follows: (1)To omit paragraphs (3) (b), (3) (c) and
(3) (d). (2)To insert after paragraph (3) (f) the following
new paragraphs: (4)That under Standing Order 52 there be laid
upon the table of the House within 28 days of the passing of this resolution the following
documents in the possession, custody or control of Transport for NSW, Sydney Trains, NSW TrainLink,
State Transit, Sydney Ferries, RailCorp and Sydney Metro:
(a)The health monitoring records for exposure to asbestos for Sydney Trains employees. (b)The health monitoring records from 1 January
2012 for all New South Wales Sydney Trains, NSW TrainLink, State Transit, Sydney Ferries,
RailCorp and Sydney Metro. I seek an extension of time. (c)Any legal or other advice regarding the
scope or validity of this order of the House created as a result of this order of the House. (4)Insert after paragraph (5):
(6)At the time of tabling of the documents in (3) (a) that the Government provide a report
on its work plan in regards to compliance with paragraph (4), including such information
as is reasonably practicable regarding the health monitoring for asbestos of the employees
of the entities in (4) (b). I will explain what this does very briefly. In terms of the initial motion it deletes
(3) (b), because I think “all legislative compliance registers” goes well beyond the
asbestos registers. There are heritage registers and a variety
of others and I do not think the intent of the motion is to go beyond that. We are very clear about the asbestos register
within six days. It extends the compliance period for the original
paragraphs (3) (c) and (3) (d) to 28 days. It also requires the Government to report
such information as it does have about the asbestos health monitoring as well as its
work plan for compliance with the balance of the documents within six days. I commend the amendment to the House. I indicate at the outset that the Labor Opposition
will support the amendment moved by Mr Shoebridge. I make a contribution in response to the Minister
for Finance and Small Business. He contends that there are no machinery of
government changes which have impacted the original call for papers and that the problem
was due to alleged sloppy drafting on our side. It is a matter of record that all members
when they draft these motions take the advice of the clerks, drawing on precedence and directing
attention to the relevant agencies. It is true that in Transport there have been
significant changes. In this case there was a non-production because
the name of the legal entity holding the documents was not one of those originally named in the
resolution. But, the Secretary of Transport for NSW, Mr
Staples, has control and direction of all of agencies in that transport cluster. It was within his power to produce the documents,
and if I am not mistaken he and his Minister were two of the persons to whom the resolution
was directed. I remind the House, the honourable Minister
and the Government of this point, it is in fact a courtesy of the House that we name
individual departments. Executive agencies, like the Crown, are essentially
indivisible. They are creations of the Executive. We could simply direct every Standing Order
52 request to the Leader of the Government and the Department of Premier and Cabinet
as the central agency. Why? Because the Department of Premier and Cabinet
is the agency to whom the Clerk writes after every Standing Order 52 request is agreed
to and the Secretary of the Department of Premier and Cabinet and his office coordinates
the response across the whole of government. It is a matter of courtesy that this House
descends to the level of detail that it does, but if the Minister for Finance and Small
Business does not want us to do that and instead hold the Leader of the Government and the
Department of Premier and Cabinet accountable to go scouring through every department and
agency, that can be arranged. I urge the Government not to be stupid about
this and not rely on technicalities and tricks. Just as when the Opposition moves to invoke
Standing Order 52 [SO52] and the scope of the motion is too broad members of the Government
beat a path to our doors to try to negotiate, which is a sensible and prudent course of
action, if the wrong agency has been named the Government could do the Opposition the
same courtesy. The Opposition does not set out to misdirect
a call for papers. Calls for papers are legitimate, forensic
and for good public policy purposes. I urge the Government to approach SO52s not
as a nuisance but as a usual part of business, to engage with the process and to engage with
honourable members around the details instead of relying on legal technicalities that will
not avail the Government. On behalf of One Nation, I state that we do
not doubt the intent and sincerity of the Labor Opposition on this matter. The safe use of asbestos is an important issue. But listening to the debate it is clear that
it would be irresponsible and untimely to divert resources from the investigation into
the XPT derailment at Wallan in Victoria and from the bushfire recovery effort. I think the six day demand is too tight and
the reallocation of resources is inappropriate at this time. I assure the House—the House knowing that
in the Transport portfolio I get things done with transport planning in western Sydney
now moving in the right direction and work on the Leppington carpark beginning later
this year—that earlier today I made inquiries about the asbestos register and the safety
issues that are crucial in the workplace. The departmental officers told me that they
are doing all the right things and gave me an assurance that the issues are being resolved
as quickly as possible. They are stretched because of the other inquiry
matters but I take their comments at face value. I think the House can accept their assurance
in the spirit in which was delivered. Globally it has been a mixed year for the
Buttigiegs around politics. We are cheering on “Mere” Pete in some respects,
but unfortunately because of the drafting issue and the six-day demand is too tight,
“Mere” Mark will not get this motion passed as far as One Nation is concerned. If the department is not doing the right thing,
on a different timely occasion this motion could be resubmitted. But now is not the right time because of the
drain on resources and the other investigations. In reply: I will address some of the arguments
for why this motion can wait for three months or six months. In the meantime, the workers will not know
whether they are being exposed to asbestos in the workplace. The idea of putting people in that situation
in the first place, let alone create more delay and more uncertainty, beggars belief. I point out to my colleague the Hon. Mark Latham and Minister Tudehope that the
Opposition is not referring to something that theoretically has to be created out of thin
air. The information should already exist. It is pretty much an Excel spreadsheet. What happens is that the organisation does
a forensic audit of all the asbestos located throughout its workplace, if it is complying
with the law. The organisation puts that information into
an Excel spreadsheet and it is available to employees usually through online access or
on paper. It will not take up six months of resources. Order! Interjections are disorderly. I ask the Hon. Mark Buttigieg to not respond to the Minister. The Hon. Mark Buttigieg will proceed. Complying with this request will not take
600 people working in an office for two months to produce. It is either there or it is not. Tell us: That is what we want to know. If it is not there, we need to do something
about it. If it is there, that is great. We can give it to the people. The amendment moved by my colleague Mr David
Shoebridge makes some very reasonable suggestions. I have to concede that the call for papers
under Standing Order 52 was drafted a little bit broadly in terms of “all legislative compliance
registers”, so the Opposition is happy to delete that. Essentially the amendments allow more time
for the production of things that will take time, such as the health monitoring records
in which the identity of employees will have to be redacted for privacy. Admittedly, that will take more time because
of the labour intensity associated with it. The Opposition is prepared to wear the 28
days for the health records but will not accept that the Government cannot produce an asbestos
register, which should already exist, by simply pressing a button or collating a number of
spreadsheets. As I said earlier, the information either
is there or it is not. The request is not resource intensive at all. Over and above what I have already said, there
has been 18 months of prevarication, obfuscation and delay. It is not good enough that workers trade off
their health and their future because the Government now wishes to use the cop-out excuses
of bushfires and the XPT to claim it does not have the resources to respond to the motion. That is not good enough. The workers’ health is in question and the
Opposition will not wear that. The Hon. Mark Buttigieg has moved a motion, to which
Mr David Shoebridge has moved an amendment. The question is that the amendment be agreed
to. The question is that
the motion as amended be agreed to.