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Monday, 22 September 2008
Page: 8105


Dr KELLY (Parliamentary Secretary for Defence Support) (5:07 PM) —It is a great pleasure to rise in support of the Safe Work Australia Bill 2008. The purpose of this bill is to establish an independent umpire to improve health and safety outcomes in workplaces. The body, Safe Work Australia, will also work to improve workers compensation arrangements across Australia. This bill is important for all working Australians and their families. Making sure a worker gets home safely at the end of the day is good for the worker and good for our productivity. More than 300 Australians are killed each year at work. Many more die as a result of work related disease. Each year, over 140,000 Australians are seriously injured at work. We all know there is a significant cost to business and the economy as a consequence of industrial accidents, but the greatest costs are the lives lost and the lives blighted through injury. This includes the grief and burden on families and loved ones.

Our health, safety and compensation systems are in an unacceptable state, unnecessarily complex and costly. Inconsistencies between jurisdictions mean that some workers are at risk of poorer safety standards than their counterparts in other states. At the same time, these inconsistencies increase the complexity, paperwork and costs for the 39,000 Australian businesses that operate across state boundaries. Australian workers are renowned for working hard and giving their all for their jobs. International studies consistently highlight the Australian work ethic as among the most committed in the world. It is these workers who need an independent body like Safe Work Australia which can work to ensure occupational health and safety issues are dealt with in an effective and reasonable manner.

I am well aware of the effects of workplace injury, illness and death. In my youth, I worked in various jobs, including for a boatshed operator, as a storeman and packer at the Pulpit Point oil refinery, as a labourer on the Metropolitan Water, Sewerage and Drainage Board, as a trades assistant to a fitter and turner, as a night shift cleaner at a veterans Hospital, in the Schwarzkopf warehouses, as a labourer on a farm and for an electrician. My first job after receiving my university degree was with Turner Freeman Solicitors in Sydney, beginning in mid-1984. From the beginning, this involved working for the victims of industrial accidents and exposure to toxic substances. We worked on behalf of the members of the Waterside Workers Federation, the Australian Metal Workers Union and the Australian Nurses Federation, among others, wading through a complex matrix of state and Commonwealth occupational health and safety provisions, litigation and compensation. It was a privilege to work for these proud tradespeople and their families. This work taught me two important lessons: (1) the importance of ensuring the protection of working people by law and having robust independent safety bodies; and (2) the importance of the right of working people to organise, as these industrial victims would have had a hard time achieving justice without the support of their colleagues.

One of the great causes of that period of my life, and something that has shaped me as a person, was the fight to get justice for workers working with asbestos and the incidental victims of exposure to asbestos. The tale of this struggle was one of entirely avoidable tragedy. The hazards of asbestos had first been observed by the Romans 2,000 years ago. Pliny the Elder referred to it as ‘the disease of the slaves’. Its extensive use in modern times began during the Industrial Revolution of the 1800s, and it went into large-scale production during the early years of the last century. In the early 1900s, doctors in Europe knew that asbestos workers were dying from respiratory ailments. In about 1900, Dr Montague Murray reported on pulmonary fibrosis, or asbestosis, in workers employed in the asbestos industry. By 1918, insurance companies had already begun to refuse life insurance policies for workers occupationally exposed to asbestos, noting their unusually short life spans. By the 1930s, there was a substantial amount of scientific knowledge accumulated concerning asbestos related diseases. However, this did not deter industry from mining and manufacturing numerous products containing various types of asbestos for domestic and industrial uses. At first, the heavy levels of exposure in the miners and manufacturers of asbestos products would see them die of asbestosis. Effectively, the massive amount of fibre they inhaled scarred their lungs so badly they would suffocate to death. Later product users and those exposed incidentally, such as wives shaking out their husband’s clothes, contracted the longer developing lung cancers and, worst of all, mesothelioma.

Over the first seven decades of the 20th century, the major miners and manufacturers, such as Turner Brothers in England; Johns Manville, Raybestos and UNARCO in the US; and James Hardie and CSR in Australia, conspired in one of the most shameful corporate cover-ups since the industrial age. Lawyers and doctors who began to get near the truth were bought off, research was suborned and monopolised, and a public relations disinformation campaign sustained. The first attempt to storm this edifice was made by Nellie Kershaw in the UK in 1925. Eventually, the US companies could see that they would need help from Congress and the law to shield them from potential liability. They were successful at first by getting the laws changed to prevent litigation against employers, moving to a limited workers compensation scheme. Then, when people began attacking them through product liability, they filed for chapter 11 bankruptcy protection. One benefit of this chapter 11 process was that, for the first time, the company files were obtained and the full horror of the callous ledger of death and profit they employed was revealed. One exchange sums up the mentality. At a meeting between UNARCO and Johns Manville executives, the infamous general counsel for Johns Manville, Vandiver Brown, stated, ‘UNARCO managers are fools for notifying employees who have asbestosis.’ An executive of UNARCO asked, ‘Mr Brown, do you mean to tell me that you would let them work until they dropped dead?’ Brown’s reply was, ‘We save a lot of money that way.’

I became aware of this material as a result of reports in the New Yorker magazine. This led my colleagues and I at Turner Freeman to start exploring avenues of inquiry that revealed an equally cavalier and despicable attitude in Australia. I travelled to the US and we built up a network of plaintiffs’ information and cooperation that was eventually to include Peter Gordon of the firm of Slater Gordon, with whom I was to visit the Wittenoom mine. This was also the former workplace of the Deputy Prime Minister and no doubt goes some way to explaining her total commitment to safer workplaces. The lies and collusion of the companies and their friends in workplace safety bodies staggered me, but I was also shocked by the litigation tactics of the companies that sought to draw out cases as long as possible in the hope of the death of the victims before settlement or judgement, as this substantially reduced the amount of potential damages in a case. These companies would flat-out lie about their knowledge and their corporate dealings, carefully working to cover their tracks behind corporate veils as their insurers started getting nervous. We spent endless hours in the Mitchell Library and the Stock Exchange, poring over discovered documents, finding and interviewing witnesses and climbing amongst ducting at Wittenoom to retrieve bagging as exhibits before the picture clarified.

My final case was for a former Royal Australian Navy veteran who had established a boutique winery in the Hunter Valley that was using asbestos filters. This was the second source of asbestos exposure in his working life; large amounts of asbestos were used in the lagging of Navy vessels. In the course of this trial process, I acquired a devastating letter from the Commonwealth that conceded they had known all about the hazards of asbestos since 1943. Asbestos was still being used at the Garden Island Naval Dockyard in 1982.

It is sobering to note that the epidemic of asbestos diseases is yet to peak in Australia, as this is estimated to occur in around 2023. It is believed that as many as 45,000 persons may die in Australia over the next two decades if effective medical treatments are not found. About 2,500 persons are annually diagnosed with asbestos caused diseases, and the numbers are rising. In the US these figures are in the hundreds of thousands.

Great vigilance is required now as asbestos materials out there in the community begin to deteriorate more rapidly. As roofing and sheeting becomes more friable, fibres start to increase in the ambience. We need to ensure that removal and remediation is effective and that those tradesmen who could find themselves cutting and sawing in-place asbestos are properly aware of and can identify asbestos. It is a sobering fact that we have not been able to determine a safe level of exposure to asbestos. It may take only a single fibre to do fatal damage, although certainly the level of exposure is highly significant.

The human cost in numbers is one dimension of the tragedy, but the excruciating agony of an asbestos death is a more profoundly shocking thing altogether. Justice O’Meally, of the Dust Diseases Tribunal of New South Wales, has said:

I have seen many people present in court, at their homes, at hospitals and at hospices dying of mesothelioma. It is a dreadful and devastating disease, accompanied by pain which is uncontrollable. Those who suffer it reach a stage where it is necessary to fight for every breath, and with every breath accompanied by pain so dreadful that the only way to avoid it is not to breathe. The choice between breathing and not breathing is no choice at all. Constant and exquisite pain is all that one may expect in the struggle to exist.

Too many times I have been witness to this struggle and to the suffering of families who could do nothing but look on. The asbestos story is without question the greatest industrial disaster in the history of this country. I was proud to have served the brave victims and their families and to have played a part in establishing the liability of CSR and James Hardie before the world. As disturbed as I was by the behaviour of these companies, I became equally disillusioned by the laxity of the state organisations that were responsible for occupational health and safety issues. Clearly, it was not enough to say that the state would look after workers or that our compensation systems were providing efficient and timely outcomes. The bill before us today helps to ensure that all the key stakeholders will have a role to play in a safer regime. The federal, state and territory governments, the employers’ representatives and the workers’ representatives, operating together, will ensure there are no weak links in the system.

The asbestos experience also illustrates how important it is that information be shared not only nationally but internationally. Work Safe Australia will become a better mechanism for achieving this. It will establish liaison with other countries and international organisations on OH&S issues, ensuring we stay on top of best practice and get early warning of emerging risks and hazards. Through the promotion and publication of research, it will never again be possible for large companies to buy out and cover up medical and epidemiological data.

I want to pay particular tribute here to the tireless efforts of Bernie Banton, who passed away just after the federal election last year. We all know Bernie’s story. Bernie stood up against an employer that was trying to do everything it could to evade responsibility through various corporate manoeuvres over the years. We owe it to Bernie’s legacy to ensure that workplaces are safer across this country. I would like to remind the House of what Prime Minister Kevin Rudd said of Bernie on the night of 24 November last year when accepting victory at the federal election:

Mate, you are not going to be forgotten in this place …

When so many were prepared to cast you to one side, Bernie Banton, you have been a beacon and clarion call for what is decent and necessary in life and I salute you.

Unions fought hard to get compensation for their members affected by asbestos exposure over many decades. If younger generations of workers question the relevance of unions, I would point to this battle. No-one worked harder at nailing down the deal with James Hardie than my colleague the Parliamentary Secretary for Defence Procurement, in his former guise at the Australian Council of Trade Unions, and it has been a special experience to have ended up working together with him on our national security challenges. The torch is still being carried out there, however, and I would also like to salute the continuing efforts of hardworking people like Sarah Schoonwater and Dean Hall, of the Construction, Forestry, Mining and Energy Union, who battle every day to make the highly hazardous construction industry a safer place. There are also a number of hazardous workplaces in my electorate of Eden-Monaro, where representatives of the CFMEU, the Australian Workers Union and the meatworkers union, among others, help to improve safety in our timber mills, forests and factories.

The National Timber Workers Memorial, in the beautiful town of Eden, in my electorate, is a constant reminder of the costs of not getting this right. I had the privilege of opening this memorial, at Wellings Park, on 7 June this year. It is dedicated to the more than 200 timber workers who have lost their lives in the industry. It also records the social history of the early pioneers of the timber industry, their communities and their relationship with Indigenous peoples and their environment. Families and friends of the victims came from far and wide that day, and it is a wonderful, reflective place of which Eden is justly proud. The memorial can be entered and exited through colonnades leading to a central statue, by sculptor Rix Wright, of an injured timber worker being assisted by his mate. The memorial statue, which depicts the mateship and compassion of timber workers for each other, is encircled by a memorial wall set with historical and remembrance plaques.

An innovative aspect of the project has been the development of a database containing an oral history of each plaque. The database can be accessed by phoning a common number advertised at the memorial and keying in the number of the plaque. The database was developed and will be maintained by the Eden Access Centre through a grant from the IMB Community fund. I thank all those who worked so hard to get this project off the ground, particularly those families who fought for a place to remember the loved ones they had lost at work. I am sure all members will be happy to hear that the federal government contributed nearly $50,000 to the establishment of this memorial. I was pleased to see that, in the design of the memorial, wood from my own family’s 19th-century sawmills may have been included in the arch leading into the colonnade, as beams from the old Tarraganda bridge over the Bega River were used. My father also worked as a timber cutter and I have memories of him returning home with many dings and bruises.

Additional funding for the project was contributed by the Eden Access Centre, South East Fibre Exports and Forests NSW. In addition, the Timber Workers Memorial Eden committee provided a significant cash contribution as a result of their sustained fundraising efforts. This memorial, however, would not have occurred without the hard work of the many volunteers who gave so generously of their time and expertise, and thanks go to each and every one of them. Throughout history, timber workers have contributed to the exploration, success and wellbeing of our country, and they deserve to be honoured with this special memorial. In reflecting on the meaning of this memorial it is important to note the progress we have made on occupational health and safety in the timber industry. This progress has come through the excellent collaboration of the CFMEU and AWU with management.

I was also recently out at the opening of the Mila gas compressor near Bombala in the southern high country of my electorate and I want to congratulate the Jemena company for the great work they have done to make that site safe for its workers and the area. Despite these good examples, the fact is that the previous government’s Work Choices laws were making Australian workplaces less safe. Work Choices allowed unscrupulous bosses to cut corners because they knew they could get away with more under the previous government’s ideological plans to destroy the right of workers to organise. However, as a downside that was completely contrary to their own longer term interests, they also undermined their own ability to achieve safety and productivity through collective bargaining.

I want to make clear that I know the majority of employers do the right thing, but there are those who cut corners when it comes to workplace safety and who continue to try to use Work Choices to strip workplace conditions and employees’ rights. At the same time, Australian workers must continue to move beyond the cultural bravado that has contributed to a number of accidents in the workplace. We also need to take special care to ensure that immigrant workers are equipped with sufficient English and awareness to observe safety signs, instructions and practices. A number of times during the election campaign last year I was approached by people involved with construction sites who were concerned by the exploitation of immigrant workers and a consequent decline in commitment to safety standards.

We know that those opposite have a burning desire to bring back Work Choices and continue their job of eroding workers’ living standards, safety and productivity. We need no more motivation than that to do all in our power to keep them where they are. Safe Work Australia will replace the Australian Safety and Compensation Council, established by the Howard government as an advisory council whose functions were confined to coordinating, monitoring and promoting national efforts on health and safety and workers compensation.

In contrast, Safe Work Australia will develop national policy relating to OH&S and workers compensation; prepare, monitor and revise model occupational health and safety legislation and model codes of practice; develop a compliance and enforcement policy to ensure nationally consistent regulatory approaches across all jurisdictions; develop proposals relating to the harmonisation of workers compensation arrangements; collect, analyse and publish occupational health and safety and workers compensation data and undertake and publish research; drive national communications strategies to raise awareness of health and safety at work; further develop the National OHS Strategy 2002-2012; and advise WRMC on occupational health and safety and workers compensation matters.

Safe Work Australia will play a vital role in realising the government’s commitment and the commitment of all state and territory governments to working together to achieve harmonisation of OH&S laws. It will have the important task of developing the model Occupational Health and Safety Act, model regulations and model codes of practice for approval by workplace relations ministers. This bill is another step in the efforts of the Rudd Labor government to rebuild fairness, equality, safety and productivity in Australia’s workplaces. The health and safety of our workers is important and needs to be taken seriously in all workplaces by management and workers alike.

I am proud that this government is again taking the lead in ensuring that workers in Australia are treated with respect. Let us here in this place rededicate ourselves, in memory of the victims of industrial accidents and their families, to ensuring that future generations of our fellow Australians will never again, through callousness and negligence, face an avoidable industrial tragedy. I commend this bill to the House.