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James Hardie directors face the consequences of their poor decisions

SafetyAtWorkBlog has kept a watchful eye on the long saga involving the directors of James Hardie Industries and their mishandling of a compensation fund specifically established for victims of the company’s asbestos products. The compensation fund story has been handled well by Gideon Haigh in his book on the company.

The saga has since evolved into one of the duties and actions of the board of directors, moreso than one of compensation. Today, 20 August 2009, the previous directors will be told of the financial and professional penalties determined by the New South Wales Supreme Court.

The ABC News online has an article about the impending court decision but more relevantly to the OHS and compensation issues is the fact that the existing compensation fund runs out in 2011 and the company says that the current economic climate does not allow for any more funds. For a company that has earned good profits from asbestos over many decades, two years of poor corporate performance does not seem to balance the scales.

Too many corporations are using the global financial crisis to mask their own management failings. The United States and England have seen this more than most countries.

The ABC was able to interview the current CEO of James Hardie Industries, Louis Gries, who is not as damning of the past directors’ decisions as some might expect, and the reporter, Sue Lannin, asks many direct questions about the company’s responsibilities to victims of its products. This interview deserves careful listening.

Company directors around Australia are watching how the court case ends and the size of penalties they may face if they make similar decisions. The OHS element is oblique to the issue of directors’ responsibilities but it is the hot topic in Australia at the moment and many OHS professionals talk with these same directors. It may be necessary to adjust one’s language or message when talking safety with them from tomorrow on.

Kevin Jones

New Australian OHS statistics

Safe Work Australia released two OHS statistical reports in June 2009 – Mesothelioma in Australia, Incidence 1982 to 2005, Deaths 1997 to 2006 and Notified Fatalities Statistical Report, July 2008 to December 2008.

Both reports are recommended for those statistic junkies out there as the analysis and trends are sadly illustrative, however some of the highlights, if they can be called that, are:

In 2005, the age-standardised rate of new cases of mesothelioma was 2.8 per 100 000 population.
In 2006, the age-standardised rate of death due to mesothelioma was 2.3 deaths per 100 000 population.

The death rate has remained stable.

MESOTHELIOMA IN AUSTRALIA

INCIDENCE 1982 TO 2005

DEATHS 1997 TO 2006

More detailed information is available in the fatalities report however below are some main findings

There were 88 notified work-related fatalities.

The majority of fatalities were male.

Workers aged 55 years and over accounted for one-fifth (20%) of worker fatalities.

Four industries accounted for over three-quarters of all notified work-related fatalities, in descending order:

Agriculture, forestry and fishing,

Construction;

Transport and storage;

Manufacturing

The most common causes of work-related fatalities were, in descending order:

Vehicle accident;

Being hit by moving objects;

Being hit by falling objects;

Drowning/immersion; and

Falls from a height.

Lawyer speaks on nanotechnology risks

A leading Australian OHS lawyer, Michael Tooma, spoke to ABC Radio on 16 April 2009.

Tooma spoke about the potential risks employers face by dealing with a substance whose hazard rating is unclear. HE says

“Employers at the moment may be unaware of the extent of the potential liability sometime down the track. …We could be facing another epidemic in our industrial history of people, large groups of people, displaying latent symptoms from current exposures that are taking place at the moment. “

The unions have repeatedly made the comparison with asbestos hazards but as Dr Craig Cormick of the Australian Office of Nanotechnology says, in the same interview, that in the early usage of asbestos evidence of potential harm was available but not shared.

An April 2007 legal update from Tooma on the issue is available

Initial union comments on OHS Law Review Panel report

The Australian Council of Trade Unions’ submission to the national review of model OHS law was entitled “The Highest Standards For Harmonised OHS Law”. This is intriguing as the union movement is not happy with the concession that the final report of the review panel made concerning the right of a union to instigate and manage OHS prosecutions.

Geoff Fary, Assistant Secretary of the ACTU, told SafetyAtWorkBlog on 17 February 2009 said that the ACTU is still assessing the recommendations of the final review panel report and will probably release a more detailed response in early March 2009 but that the OHS harmonization process “should not result in a reduction in protection of workers’ entitlements or the rights of any group of workers.”

The ACTU has concerns

“if the result of this process is that the people who have benefited from that [right] no longer have it available. It therefore follows that one of the key things we are concerned about in the recommendation of the second report is that if it was adopted it would no longer be open for unions to initiate prosecutions when regulators fail to do so.”

Fary said that prosecutorial action by unions in New South Wales have always been successful and have lead to legislative change.

“Undoubtedly, in our view, the ability for unions to prosecute has been in the best interests of health and safety outcomes for workers.”

To some extent workers and the media are getting confused by the parallel reform processes of industrial relations and workplace safety. There is the potential for one stream to retard the process of the other. Geoff Fary said that this is unlikely as he thinks that the IR reforms could be “up and running before all of the OHS changes”.

Fary expressed the ACTU’s support for the declarations and actions of the International Labour Organisation but it is noted that media reports on 18 February illustrate that not all the union movement supports the ACTU President, Sharan Burrows’ perspective that Australia’s new industrial relations legislation meets international obligations “on balance”.

Kevin Jones

Edited audio of the interview with Geoff Fary can be accessed HERE

Previous SafetyAtWorkBlog postings concern Geoff are available

OHS as an agent of change

Tom Bramble is a Queensland socialist academic who recently published a history of Australian trade unionism. I attended his book launch in Melbourne and found it partly inspiring and partly disconcerting.

Tom (pictured here) was an excellent speaker and seemed to be a known entity to the strongly socialist audience. It was the audience that I found disconcerting. I had not been in so overtly socialist circles for over a decade and although disconcerted, the atmosphere was refreshing due to the level of passion in the speakers.

I regularly write about the industrial relations context of workplace safety so I was disappointed that Tom did not mention OHS as an agent of change. I went back to his book and looked for mentions of workplace safety knowing that there have been disputes over OHS in the trade union movement and often workplace fatalities have generated politic pressure and outrage.

There were some mentions of of safety or health conditions but these were often as an add-on to the more industrial issues such as wages. Perhaps this is where OHS should be but I can’t help thinking that safety and health can be important elements of emphasising the importance of a dispute by appealing to basic worker and human rights. One example in Tom’s book is the Mount Isa Mine dispute in 1964 where the state of amenities block was a source of tension. Given the devastating effect of asbestos, lead and other industrial illnesses, I expected health and safety to have a much higher profile.

Perhaps, my expectations were too high as I had been reading a history of the Queensland Fire Service where the safety and safety equipment were important elements and even motivators for disputation. Indeed, the issue of PPE in the emergency services remains a hot issue even in 2008.

Arguing for improved safety equipment is a useful example of OHS as an agent of change because of the direct relationship of PPE as a hazard control mechanism.

I don’t accept the position that firefighting is riskier than working in construction. Construction faces a constant presence of hazards whereas firefighting is highly intermittent even though the risks may be more intense.

Australian workplaces have a sad history of fatalities, falls, poisoning, suicides, amputations, crushings, runovers and drownings. Each of these issues have generated change in specific workplaces. Some have generated political, organisational and cultural change. It seems to me that a history of workplace safety in Australia may be needed to show people how the little brother of industrial relations affects change from an, arguably stronger moral position.

Kevin Jones

Those at risk of exposure to asbestos

Over this last weekend, asbestos-safety advocates, ADSVIC, took advantage of the topicality of the navy’s poor management of asbestos by including half-page ads in major Australian newspapers. The ads focused on the risks associated with DIY home renovators but law firm, Slater & Gordon, related their asbestos information sheet directly to the media attention about the Australian Navy.

Slater & Gordon, a former employer of Australia’s industrial relations and education minister, Julia Gillard, have always been active in seeking new clients and have participated in many class actions based on workplace safety issues, particularly the James Hardie Industries legal action of earlier this century which was important for many reasons, including the furthering of political careers.

Slater & Gordon’s information sheet includes a list of those people who it believes are at risk of asbestos-related diseases. It doesn’t much leave room for anyone to feel safe from this risk.

Miners
Asbestos plant workers
Handlers and waterside workers
Asbestos factory workers
Carpenters, plumbers, electricians and builders
Wives and children of workers
Office workers
Mechanics/brake workers
Power plant workers/refinery workers
Teachers and students
Hospital workers
Telstra workers
People at home

Kevin Jones

“Illegal” asbestos use in the Australian Navy

The defence forces operate with a different understanding of risk and safety. In the past there are many instances where soldiers lives have purposely been sacrificed for the greater good. This has been an integral part of many “heroic” battles.

The Australian federal OHS authority, Comcare, is at the forefront of a clash between occupational safety and armed services culture. The Age newspaper has revealed the Australian navy’s continued use of chrysotile asbestos in its ship and navy bases years after the substance was banned for use. The newspaper says that a risk assessment report has found

..”the risk to personnel was significant, exposure to asbestos was almost certain and the consequences were “potentially catastrophic”.”

OHS standard practice is to identify the control of hazards in line with the Hierarchy of Controls which seems to have been done as the newspaper reports

“A ban on the use of and import of asbestos-containing materials in Australia came into force on January 1, 2004. But the ADF [Australian Defence Force] requested and won an exemption [page 5 of the SRCC 2005-06 Annual Report] to continue using chrysotile asbestos parts until 2007 on two strict provisos: that the parts were “mission-critical” – meaning their absence would ground equipment and jeopardise a mission – and that no non-asbestos replacement parts could be found.”

So the hazard can’t be eliminated or substitutes found. That’s the first two levels of the hierarchy down. The report goes on to assert that the (in)action of the Navy could be illegal and says the exemptions were renewed for another three years (page 81 of the SRCC Annual Report 2007-08)

The remaining levels of the control hierarchy are not addressed in recent media reports or documents available through Comcare’s website but the continuing cases of asbestos-related diseases reported by the lobby groups would indicate that personal protective equipment may not have been used or used appropriately.

Most organisations are aware of the hazard of asbestos if not how the hazard relates to the specific circumstances. The Navy cannot claim this as it has specifically claimed exemptions for the hazard.

The current Defence Minister, Joel Fitzgibbon, took action on the defence force’s use of asbestos products almost 12 month’s ago and even though it was reported that he gave the Defence chiefs a “dressing down” over the issue, circumstances seem not to have improved.

“But Defence Minister Joel Fitzgibbon, who first accused the Defence Force of lethargy in its efforts to remove asbestos in 2007, when he was in opposition, said despite the massive cost of ridding the ADF of asbestos, its continued use was unacceptable.”

For those who habitually argue that worker safety is not affordable, the Minister’s quote above shows commitment. Sadly it is these types of comments that can come back and haunt politicians.

It is suspected that the Minister or the Navy is receiving letters about non-asbestos gaskets from keen equipment suppliers as you read this blog. But that raises the problem of the labyrinthine issues of defence equipment procurement. Perhaps the fact that anti-asbestos campaigner and former trade union leader, Greg Combet, is now the Parliamentary Secretary for Defence Procurement may fast-track the issue. It is hoped that on the issue of asbestos in the defence forces, Greg speaks up soon.

Kevin Jones

Category: asbestos

James Hardie directors face the consequences of their poor decisions

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New Australian OHS statistics

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Lawyer speaks on nanotechnology risks

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OHS as an agent of change

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Those at risk of exposure to asbestos

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“Illegal” asbestos use in the Australian Navy

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