By Mick Buchan
Over the last few years I’ve witnessed the staggering inadequacy of our occupational health and safety laws when it comes to holding principle contractors and subcontractors accountable for the death of a worker.
The penalties that are handed down, even when a builder is found guilty of negligence, have been a disgrace in the face of the extraordinary loss of life and the suffering of families left behind.
The current maximum penalty for bosses who have been shown to be negligent is a fine. That’s all. A simple fine. And the fines are only a fraction of the money that companies can gouge by cutting corners of safety.
In 2015, Joe McDermott and Gerry Bradley were crushed by a precast concrete panel on a Jaxon site while sitting having a break in what should have been an exclusion area during high risk work.
The transport company who delivered the precast panels were found guilty of failing to provide a safe workplace. They were given a fine of $60,000 for each death. That’s it. $60,000 fine for each death.
The builder, Jaxon, where not held accountable in any way whatsoever.
I was in contact with Gerry’s family in Ireland and while they were here in Perth, and his brother Jon-Paul was devastated. These are his words.
“We were expecting big fines, we were expecting someone to be held to account for what happened.”
“We just don’t understand why the law is so weak around worker safety. We know that if this had happened in the UK someone would have been charged for industrial manslaughter.”
In December 2017, Wesley Ballantine fell and was killed while installing a glass ceiling for the H&M development in the old Post Office building in Perth’s CBD. He was 17 years old.
Despite pleading guilty to failing to comply with their workplace safety obligations, Valmont were recently fined a total of $38,000. The company considered installing scaffold to eliminate what they knew was an ‘obvious and high risk’ hazard. Scaffold was the industry best practice in the given circumstance. They chose not to install it after getting quotes for its construction.
As a scaffolder myself, and having seen that site, I believe the $38,000 fine is probably less than the company saved by choosing not to install the scaffold that would have saved Wesley’s life.
And there’s the problem.
Right now it costs less to pay the fines for killing a worker than does to provide a safe workplace.
Companies and individuals can also indemnify themselves against a conviction. They pay insurance. And if they’re found guilty then the fine is simply paid out by the insurance company.
So killing a worker through negligence and greed has become just another business cost that’s already factored in to their annual expenditure.
As the brother of a killed worker once so bluntly but appropriately put it, “How the f**k does that create any sort of deterrent?”
CFMEU have been working with families who have lost a loved one to try and introduce industrial manslaughter laws in Western Australia. And we finally have a commitment to make it happen.
Last week the WA State Labor Government announced that they would introduce an Industrial Manslaughter bill into the Western Australian parliament before the end of the year.
This is a rare win for working people in an era where the interests of rich and powerful business lobby groups often dominate our country’s political agenda. And I personally commend Minister Bill Johnston and Premier Mark McGowan for their political integrity in announcing this bill.
Under the proposed laws, business operators who contribute to the deaths of employees by failing to provide a safe workplace could face prison sentences of up to 20 years and fines of up to $10 million.
Regan Ballantine is the mother of Wesley Ballantine who was killed in 2017. Since Wesley’s death, Regan has been a vocal advocate and fierce fighter in the campaign for justice.
I was with Regan in the court room when Wesley’s case was heard. I was struck by her words when the judge asked for her victim’s impact statement. She replied that Wesley was the victim, she is the survivor and was there to give a survivor impact statement.
This is what she has to say about the proposed laws.
“These laws are not about retribution or an eye for an eye, they are about changing corporate behaviour and discouraging the prioritisation of profit over people.”
“It’s been long established that financial sanctions are not adequate at discouraging that type of behaviour, especially when the courts are imposing such insignificant penalties as they did in the case of my son, with the $38,000 fine for a guilty plea.”
“Corporate behaviour doesn’t change without individual personal liability. Period.”
She’s right. And she would know.
She’s experienced firsthand what no mother should ever have to face and she’s had to navigate a system that comprehensively failed to value the life of her son above the interests and profits of big businesses.
But Regan’s experience, and the self-evident need for meaningful penalties that it highlights, hasn’t stopped some self-interested lobby groups from coming out this week in an appalling effort to try and derail this legislation before it begins.
The Master Builders Association of Western Australia represent construction companies. This week they put out a volley of media commentary trying to imply that holding employers to account will somehow hurt safety and harm our construction industry.
This is greed inspired, sycophantic bullshit.
Master Builders have become nothing but a public apologist for a small group of powerful builders in Western Australia who want to protect their ability to profit from the exploitation of others.
Their comments are designed to protect the directors and managers of these big companies from ever having to face the consequences of decisions that place their financial aspirations above the life, safety and dignity of working people.
Safety costs money. And while the penalties for breaches are purely financial, decisions will be made on a purely financial basis.
The sad and stark truth is that some employers value their own financial interests over the lives of workers. It has always been this way. Throughout history it’s been this way. To pretend anything else is ignorant and naïve.
So penalties must directly impact the life of those decision makers. When an employer or site manager or company director knows that they can go to prison for exposing workers to danger then the game immediately changes. They stop thinking about the ‘minimum protection required’ and start thinking about the ‘maximum protection available’.
And that’s exactly the thinking that will keep more people safer, and prevent more families from having to suffer the anguish of having their mother, or father, or sister, or brother, or son, or daughter going off to work one day and never coming home.
We need a society where the choice to erect $50,000 of scaffolding is not weighed up against the $38,000 fine that might be imposed if a worker is killed but instead weighed up against the very real and very personal cost to a decision maker and their family that a prison term represents.
We need this. We need these laws.
I’d like to voice my respect and appreciation to Regan Ballantine for her commitment and her strength.
I’d also like to personally thank Trish Kelsh who lost her husband Des in 2002, Janice, Mark and Heath Murray who lost their son and brother, Luke, in 2007, and Debby Cunico and Ashley Castle who lost their husband and father, Robert, just last year.
By standing up and telling their stories, by refusing to accept inadequate laws, and by never letting the deaths of their loved ones be swept under the carpet, each of these families have been critical in making our society face up to how totally inadequate the current laws have been.
Every West Australian worker owes these families a debt of gratitude. These proposed laws would simply not have been drafted without their efforts, and I hope this announcement brings each of them some small comfort.
So to each of them, thank you.
And to everyone who has had a loved one leave for work one day and never come home I offer this promise. CFMEU remembers them. Always.
CFMEU Construction & General WA