ARK TRIBE, THE ABCC & THE AUSTRALIAN CRISIS IN OHS&W
by Andy Alcock
I was asked by the members of the Eco Socialist Convergence in South Australia to prepare a pamphlet about the struggles by the union movement to have the most effective OHS&W laws in Australia to protect workers from death, disease and injury in our workplaces and the abolition of the anachronistic ABCC (Australian Building and Construction Commission) and the dropping of charges by it against Adelaide construction worker, Ark Tribe, who could face 6 months gaol.
As I began to consider the obstacles being faced to having effective OHS&W laws introduces in Australia, I realised that this task really needed something longer than a pamphlet to analyse them in more detail.
Some readers may think that I am being unnecessarily alarmist, given that OHS&W has gradually improved over the past 20 years.
However, I believe that we have almost reached a stalemate to further improvements.
There are many factors as to why this is happening eg the resistance by the opposition of the Australian Chamber of Commerce and Industry and many employers (but not all) to the introduction of improved regulations and codes; the reluctance of politicians (Liberal and ALP) to introduce more effective laws; the failure by the media to give priority to industrial accidents (compare the focus on traffic accidents); insufficient number of inspectors to enforce codes and laws; apathy of the general public; the reluctance of many ACTU and some union leaders to give priority to effective OHS&W campaigns etc
Humphrey McQueen has analysed many of these factors in his brilliant book Framework of Flesh – Builders’ Labourers Battle for Health & Safety.
My aim is to give a brief background of Australia’s standing in OHS&W in a world context and to encourage progressive people to understand that OHS&W is a top priority for ordinary working people in Australia and needs our urgent attention now.
I also hope that it will challenge those who were hitherto uncommitted about OHS&W to struggle for best practice OHS&W laws, to give support to Ark Tribe and demand the abolition of the ABCC.
Some believe that Ark won on a legal technicality, however, the changes in our OHS&W laws will still occur and we need to fight for best practice, effective legislation.
If Ark still faces imprisonment, obviously we should fight to prevent this happening and to struggle for the ABCC to be abolished.
A Brief International Summary
One of the most concerning issues facing working class people world-wide is the issue of health, safety and welfare of workers.
We have all heard the tragic stories of the huge death tolls of miners in China and South Africa; silicosis-TB amongst Bolivian tin miners (who were dying in large numbers at about 30 years of age), miners and process workers of the killer dust, asbestos etc.
Of course, this is not a new situation. Many of us have read of the conditions that prevailed in the factories that were built during the Industrial Revolution in Britain. Often, it was death and disease at work that were the major reasons for the establishment of trade unions.
There has been the expectation by many owners of industries for centuries that workers should be grateful to have work and, if there are risks to life and health, they should be grateful to have a job! I would argue that many employers in the world and Australia today share that view.
According to the International Labour Organisation (ILO), across the world:
• Each year, more than two million working women and men die as a result of
• work-related accidents and diseases
• Workers suffer approximately 270 million occupational accidents each year, and
• fall victim to some 160 million incidents of work-related illnesses
• Hazardous substances kill 440,000 workers annually
• – asbestos claims 100,000 lives
• One worker dies every 15 seconds worldwide – 6,000 workers die every day
• Cancer is the biggest killer of workers and most workers who die from work-related cancer die from lung cancer and mesothelioma caused by their exposure to asbestos dust.
This was the reason why the ITUC mounted a Zero Occupational Cancer Campaign (ZOCC) recently for several years to raise awareness about carcinogens in workplaces and to have asbestos universally banned.
More people die because of work than those fighting in wars.
The situation has become so bad, that the international trade union movement observes an International Workers’ Memorial Day on 28 April each year. This day is recognised officially by the ILO, the International Trade Union Confederation (ITUC) and by the governments of many countries including Argentina, Belgium, Argentina, Bermuda, Brazil. Canada, Dominican Republic, Luxembourg, Panama, Peru, Portugal, Spain Thailand, Taiwan and the US.
It commemorates workers who have been killed, injured or diseased as a result of work and those who have been threatened, imprisoned, tortured or killed because they fought for effective OHS&W conditions.
Unions in other countries are campaigning to have their governments give official recognition to the day as well eg Benin, Czech Republic, Finland, Hungary, Malta, Nepal, NZ, Romania, Singapore and Britain.
According to the Maplecroft Health and Safety Risk Index (HSRI), worldwide, Denmark achieves the best occupational health and safety ranking, followed by Luxembourg, Switzerland, Sweden and Finland.
Nine countries fall into the ‘extreme risk’ category, with the Democratic Republic of Congo worst rated, followed by Nigeria, Ethiopia and Bangladesh. The UK is ranked the 30 safest nation, placing it at the mid-point of the ‘low risk’ group. Some other major OECD nations have worse rankings, including the USA, France, Germany, Italy and Spain. Australia is also placed in the low risk group, but it is generally agreed that it does not perform as well as Britain.
The situation in Australia
Well, some might argue, what is the fuss if we are in the low risk category?
The shocking truth is that in Australia each year:
• almost 500,000 work related accidents occur
• 690,000 workplace injuries or illnesses occur
• more than 7,000 Australians die annually from work related diseases and accidents
• (this is far in excess of the the national annual road toll)
• the cost to the Australian economy is a staggering $57 billion.
The above statistics are a national shame for a country which claims to be a modern one and where most citizens enjoy above average wages and conditions.
Incidentally, South Australia is often known as the Mesothelioma State because South Australia has the highest incidence of mesothelioma deaths than anywhere else in Asutralia.
Attitudes of Employers
During my years as a union OH&S officer, I have encountered varying attitudes to the issue of OHS&W by employers. I have met many who are are diligent in organising their workplaces to be safe and healthy for their employees.
However, there are many employers who treat this important aspect of their work with disdain and think that it is over the top. There is a group that seem to think that because they are providing employees with work, that they should accept the risks.
How often have you heard the comment when there are accidents: ?hey know what they are getting into, so they shouldn’t be surprised if things go wrong!
Many of those who have been criminally negligent and actively opposed best safety standards do not consider that they are doing anything illegal.
One glaring example is the attitudes of employers in the asbestos mining, processing and transport industries. The worst example was of course James Hardie was the worst example. Matt Peacock’s 2009 well researched book, Killer Company James Hardie Exposed, gives a detailed account of this company’s criminal behaviour which has contributed substantially to the fact that tens of thousands of Australian workers are dying well before they should be and they are suffering dreadfully painful deaths.
Workers and members of the public were lied to about the dangers asbestos and true nature of their medical conditions. There were attempts by the employer to delay court actions in the hope that the victims would die before receiving their compensation. James Hardie tried to relocate overseas and leave insufficient monies for compensation.
Of course, there is a double standard here. The same principles do no apply to negligent drivers on our roads. They meet the full force of law if their negligence injures or kills others. And this should be the case.
ACCI (the Australian Council of Commerce and Industry), the peak employer body in Australia resists the introduction of effective new codes arguing that there are too many OHS&W laws. In 2005, ACCI published a Modern Workplace: Safer Workplace Blueprint for Improving OHS. Much of it was a complaint about Australia’s OHS&W laws and expressed the desire to have less legislation and opposed the introduction of any laws including Industrial Manslaughter (more about that later).
It released the document on 28 April, IWMD, the very day that millions around the world were involved in ceremonies to remember workers, friends and loved-ones who had died or suffered in the workplace.
On one hand, Australia’s OHS&W laws need to be uniform in all states, but they also need to be effective and they need to be adequately enforced.
Many employers promote the concept of behavioural safety. This approach to OHS&W relies on constantly monitoring the safety performance of employees and does not concentrate on the insistence that employers provide safe and healthy workplaces. Those pushing this philosophy tend to blame the workers for accidents, injury and disease
Humphrey McQueen describes many of these attitudes in Framework of Flesh.
A young Adelaide apprentice, Daniel Madeley, died in April 2004 after his dustcoat caught in an unguarded horizontal boring machine at Diemould Tooling Services, dragging him into a gigantic drill and flinging him around causing horrific injuries.
A spokesperson for the company stated in court that the company owner at the time of the accident was someone who regarded safety improvements as a bit unnecessary! The company was fined $72,000 for breaches of SA’s OHS&W regulations.
Most would agree that the major reason why the Howard Government was defeated at the 2007 federal elections was the issue of WorkChoices. The Australian trade union movement mounted a very costly, spectacular and effective campaign in the lead up to that election and that was a major factor in the Howard defeat.
The ALP promised to overturn WorkChoices, abolish the Australian Building and Construction Commission (ABCC) and do something about unifying and extending Australia’s OHS&W laws.
The ABCC was created by the Howard Government to put pressure on the CFMEU just as it saided and abetted the actions of Patricks against the MUA in 1998. The ABCC is an anachronistic body which has been given strong arbitrary powers to impose intolerable control over the industrial and OH&S activities of construction workers. Howard sought to create a situation where building and construction workers would be blocked from demanding safe working conditions, which many construction employers did not want to pay.
Ark Tribe, a construction worker in SA, faces 6 months gaol because he held meetings to address OH&S issues at his worksite at Flinders Medical Centre and refused to give details of that meeting to the ABCC .
A political party claiming to support workers would have abolished such a body in its first week of office just as Whitlam abolished the National Service Act in 1972.
The existence of such a body should not be happening in a civilised country in the 21st century.
The campaign to abolish the ABCC and prevent Ark Tribe from going to gaol is a very important one, but I believe that it should be seen in the context of the present threat to our OHS&W laws during the process of harmonisation.
“Harmonisationof OH&S Laws
Arising from the promises of the 2007 election promises, the Rudd and Gillard Governments have been standardising our OH&S laws in the nation in an exercise that began in 2008. Many unionists involved in OHS&W wanted to avoid the use of the word harmonisation as it was a term used by the Howard Government and most workers did not trust a process to merge our OHS&W laws if Howard or Abbott were in control of the process.
The unifying of the laws is something that OHS&W activists in the Australian union movement have been demanding for a period of over 2 decades. During that time, the union OHS&W activists have always argued that national uniform OHS&W laws effectively protect workers and that they should be effectively enforced.
It would be a good thing if the harmonisation process was leading to best practice legislation with effective enforcement.
The fact is, however, that what we are going to get will be seriously watered down OH&S laws, which could lead to even higher levels of work-related disease, accidents and death.
Of particular concern is the fact that existing asbestos codes and regulations will become less stringent. Exposure to asbestos dust is currently the biggest killer of Australian workers.
NSW OH&S legislation allows for unions in that state to initiate prosecution of employers alleged to be criminally negligent. This will not be retained in the new national laws. There are many other changes which will make it more difficult for Health & Safety Representatives (H&SRs) to play the role that they can in SA and other states to protect the health and safety of fellow workers.
It is obvious that the outcome will be disastrous for Australian workers.
The ACTU Leadership & Attitudes to OHS&W
The ACTU leadership over the years claims that OHS&W is a major issue, however, the action to demonstrate this commitment has not always been very strong. When I first got involved with the ACTU OH&S Committee in the late 1980s, it met once every 2 years. A number of activists managed to change this so that it was gradually increased to 4 times a year which is still the case.
The ACTU Assistant Secretary responsible for OHS&W when I first was first on the Committee basically expected to tell the committee members about OHS&W issues and did not want delegate feedback. It was quite a struggle to get motions put, carried and then actioned. I don’t think he understood that unions are actually supposed to be democratic!
At that time, the ACTU was generally way behind the latest thinking in preventive strategies. For example, when most modern manual handling codes had already ruled out weight limits for workers and were promoting the concept of no worker should lift a weight beyond which s/he was able to manage and engineering solutions to MH problems, this ACTU assistant secretary was still pushing for weight limits.
Further, the welfare aspect of OHS&W was considered to be a joke. Once, when we were considering an ACTU recommended accident/injury report form, I noticed that amongst the multiple choice boxes on the draft form, there were none asking injured workers about psychological injuries.
I did not get much support for this position then, but now, nobody but the worst employers, ACCI (the Australian Council of Commerce and Industry), the peak employer body in Australia resists the introduction of effective new codes arguing that there are too many OHS&W laws.
Most unions have workers’ compensation officers or hire experienced lawyers to assist their members with workers compensation claims. However, very few have specialist OH&S officers to promte prevention and assist members in their struggles for safer and healthier workplaces.
In the late 1990s, the ACTU initiated a new program called Organising Works to address the issue of declining union membership and to promote improved grass root actions in more workplace to resolve industrial issues. Organising Works was brilliant except that one of the program’s key trainers promoted the idea that unions did not need specialist OH&S officers. As a result, one union secretary in SA who is now a parlamentarian abolished the OH&S officer position in his union. Quite appropriately, there was a great member backlash, but the position was not replaced
ACTU OH&S Unit
In 1981, Dr John Matthews was the founding leader of the ACTU-Victorian Trades Hall Council OH&S Unit. Over the years, this unit has assisted large numbers of union activists on OHS&W matters and represented the union movement in trying to achieve best practice OHS&W codes and laws.
During then time of the National OH&S Commission, the ACTU and ACCI (the Australian Council of Commerce and Industry), the peak employer body, received grants to employ a number of staff in their respective organisations.
For a number of years, from the late 1990s to about 2005, the ACTU employed 3 well qualified and experienced staff in this unit. This dedicated group of people were involved in negotiating with the NOHSC and other agencies preparing national codes, working on the ACTU OH&S Committee papers, assisting union leaders activists with expert advice, organising OHS&W campaigns every year to coincide with IWMD and union OH&S conferences and providing up to date OHS&W information to the union movement.
Sadly, they were basically stampeded out of the unit in 2005 by Richard Marles, an ACTU assistant secretary who is now a federal parliamentarian. They were replaced with one officer.
The person appointed was Steve Mullins who did not have experience in OHS&W, but worked extremely hard to get control of the job. He achieved much, but obviously could not match the achievements of the 3 officers who preceded him.
OHS&W & Elections
The ACTU usually goes into overdrive when there are federal or state elections to promote
current union campaigns.When I was a member of the ACTU OH&S Committee in 2006, I successfully moved a motion that OHS&W be a major component of the ACTU Your Rights at Work Campaign which was a major reason for the defeat of the Howard Government at the 2007 elections.
Also, just prior to the elections, the ACTU OH&S Committee finalised the Union Charter of Workplace Rights for OHS & Workers’ Compensation.
This statement was seen as a very important document by the union movement as it assumed that workers have a basic human right to have the best OHS&W conditions in their workplaces, effective legislation and strong enforcement of it and adequate compensation if they still became injured or diseased.
The ACTU OH&S Committee recommended that the Charter be used as an election tool and to call on activists to ask candidates to commit to it during the campaign in the lead up to the 2007 election.
Sadly the issue of OHS&W was not central to that campaign. Basically, any mention of OHS&W was left to that courageous worker, Bernie Banton, who was terminally ill because he was in the final stages of mesothelioma. Bernie took on former Health Minister Tony Abbott to have the drug, Alimta, made available on the pharmaceutical benefits scheme to mesothelioma sufferers. This drug helps to alleviate the symptoms of cancer and prolongs life and was available for sufferers of ordinary lung cancer, but not mesothelioma of the lung. Abbott was not going to give in, but changed his mind just before the 2007 election thanks to the actions of Bernie and some very callous remarks made by Abbott.
To be fair, former ACTU Secretary, Greg Combet, also accompanied Bernie Banton in court appearances to ensure that asbestos victims received more adequate compensation than what the James Hardie corporation was originally prepared to give. This battle also proved victorious.
Some unions did promote the Charter, but it was not promoted by the ACTU leadership. Indeed, during this time, it was very difficult for many union members to find it on the ACTU website.
It should be noted that Greg Combet, the former ACTU secretary was one of a number of union leaders who successfully entered Federal Parliament in 2007. Union activists might well ask what are these MHRs and senators doing to ensure we get the most effective OHS&W laws?
Then Deputy PM Julia Gillard, addressed the 2008 ACTU OH&S Conference in Melbourne. I asked her if she would personally commit to the Charter. Her response was that she would not do so as she had not seen it. Steve Mullins told me that her had given it to her personally.
At the 2009 ACTU OH&S Conference in Sydney, the delegates carried a resolution urging the ACTU Executive to organise a campaign to promote OHS&W that would be as well resourced as the Your Rights at Work Campaign (YRWC).
In response, the ACTU initiated a campaign entitled DON’T RISK 2ND RATE SAFETY (DRSRS) which is supposed to pressure the Government to introduce effective laws which will be effectively enforced.
The leadership activity around this campaign is so low that many key union members do not know of its existence. At an Ark Tribe rally in 2009, I worked with a group of comrades to encourage the several thousand present ro sign a petition for the DRSRS Campaign. Out of several hundred activists attending the rally I spoke to not one knew that the ACTU even had a campaign!
The union movement in Australia is very fortunate that the Victorian Trades Hall Council (VTHC) OH&S Unit exists because it has done a great job in providing OHS&W resources to assist the ACTU during the harmonisation exercise as well as promoting the important ongoing OHS&W campaigns.
Zero Occupational Cancer Campaign (ZOCC)
This campaign organised by the ITUC should have provided a great opportunity for the union movement in Australia to educate the public about work-related cancers. Cancer is the biggest killer of workers world-wide and in Australia, the asbestos-related cancers are the ones that claim most workers’ lives.
In 2008, the ACTU OH&S Unit organised a one day briefing for union officials. About 30 attended and most were officers responsible for OHS&W. At this day, there was agreement that the union movement would make this a large campaign that would involve grass-root union activists across the nation. It was also agreed that there would be a national conference inolving unions, researchers, cancer councils, cancer sufferers and the wider community.
In late 2009, there was a successful one day conference, kNOw Cancer in the Workplace Conference, which involved the Australian Cancer Council. The papers can be found on the Cancer Council’s website, but not on the ACTU’s.
ZOCC was picked up more energetically by the Victorian Trades Hall Council (VTHC) OH&S Unit, which organised a number of events and carried a lot of information on its website.. A few unions independently organised their own events and carried information on their websites eg AMWU, AEU, PSA/CPSU . In South Australia, the PSA/CPSU and SA Unions held half day seminars during SafeWork SA’s Safe Work Month in 2008.
It is interesting to compare what happened during this campaign in other parts of the world. As I mentioned earlier, the campaign continued for about 5 years internationally. The Canadian Auto Workers prepared a manual for its members, which explained how cancers are formed, what chemicals and other agents cause them, suggested actions to identify carcinogens in workplaces and to have them replaced with safer products. There were goals to drastically reduce the number of carcinogenic agents used in workplaces world-wide and to achieve an international ban on asbestos.
Britain’s Hazards Magazine repeatedly included information about the campaign. The International . The International Metalworkers Federation prepared a very informative booklet, which was used by its affiliates and other unions around the world.
The issue of occupational cancer is a big one in this country and the ACTU leadership should have shown greater leadership to ensure that ZOCC continued for a longer time and reached many more Australian workers than it did.
Why OHS&W is not deemed as a major issue by the ALP & some union leaders
OHS&W is one of the great issues that the progressive movement needs to adopt far more strongly than it has in the past. ALP governments are not willing to push this issue as strongly as they should if ithey were truly supporting the Australian working class.
This also affects the ACTU as many of its leaders eventually become ALP MPs and they do not want to take stands that are likely to get them off side with the conservative elements in ACCI and the ALP.
ACCI representatives almost always push for OHS&W codes that are not effective and certainly oppose the introduction of Industrial Manslaughter Legislation. Such legislation would ensure that negligent employers whose negligence leads to death, serious injury or disease would personally be liable to be fined and/or serve prison terms.
The only ALP government in Australia to support such legislation is the ACT government.
This is the reason why progressive unionists and activists need to be active in promoting OHS&W
I thought it was amazing that the Federal Government was so inept in defending itself during the public debate over the tragic deaths of the insulation workers while carrying out installation work as part of the Federal Government home insulation program. virtually accused Peter Garrett of industrial manslaughter.
Government members could have pointed out that, in every state and territory of Australia, there are already OHS&W laws that require employers to undergo a risk assessment procedure and to provide their employees with adequate training in safe work procedures
before any work begins and to ensure that there is effective supervision. Further, all employers have a duty to provide healthy and safe workplaces and to provide employees with safe equipment and materials to carry out their work safely. Each state and territory have inspectorates to ensure that these laws are adhered to.
Deputy PM, Julia Gillard, was correct when she stated that Peter Garrett cannot be in every roof while the insulation is being installed. However, if it is true he knew that there were poor safety standards involved at the beginning of the program, the responsible course of action on his part would have been to liaise with OH&S authorities around the country to ensure that all involved in the program were trained and were provided with safe systems of work, safe equipment and effective safeguards before the work commenced. Further, inspectorates should have been monitoring the program closely to ensure that safety standards were not being breached.
Those workers died because there were failures on the part of many key players.
During the public debate, Tony Abbott tried to accuse Peter Garrett of industrial manslaughter. This is interesting because the Liberal and National parties have always opposed the introduction of industrial manslaughter legislation. The only government that has such legislation is the ACT. There have also been attempts to introduce this type of legislation in NSW, Victoria ans SA, but other ALP governments do not want to introduce such legislation either largely because of the reaction by the big employers.
If people who drive in a negligent manner kill or maim others, they expect heavy fines and prison terms. Why should this not the case for negligent employers who through their negligence kill or maim employees? This should be an integral part of an effective OH&S legal system. As I write, the local daily paper, The Advertiser, ran two stories one about a young person driving in a dangerous manner and the other about an industrial death on the desalination plant at Port Stanvac. The first story was on page 3 even though no-one was hurt; the report of the industrial death appeared on page12!
Having worked in the union movement for about 25 years, I know that many union leaders including those in the ALP do not give much priority to OHS&W. For some of those who want to enter parliament, I am sure that there is the consideration of not wanting to get big interests off side, but for many others, they just don’t understand.
This is the challenge. As we struggle to make changes for a safer and healthier future, we need to change
It is my view that all progressive, green and social justice activists should strongly support the campaign to abolish the ABCC and to prevent Ark Tribe from going to prison. However, the ever present issue is the demand for OHS&W codes and laws that protect workers from injury, disease and death.
OUR OHS&W RIGHTS AT WORK ARE WORTH FIGHTING & VOTING FOR TOO!
DON’T RISK 2ND RATE SAFETY!
DON’T RISK 2ND RATE OHS&W CAMPAIGNS!
I would urge all progressive activists to read the 2 books listed below as they describe the tragic situations that have been allowed to occur in Australian workplaces because of inadequate OHS&W laws and lack of effective enforcement of the laws that we have.
Humphrey McQueen: Framework of Flesh – Builders’ Labourers Battle for
Health & Safety (Ginninderra Press)
Matt Peacock: Killer Company (ABC Books)
MESSAGE TO ARK TRIBE
“Many workers around the country are watching your case with great interest because your courageous stand is about workers’ basic human rights to work in a healthy and safe environment.
As the ABCC tries to bully you and fellow construction workers into not organising over this crucial issue, the Gillard-Rudd government is embarked on watering down our OHS&W laws in Australia.
The struggle to resist this move by the pseudo Rudd Labor government must be resisted as we fight to remove the ABCC. In 2007, the ACTU published a Charter of Workers OH&S Rights. This is based on the UN Charter of Human Rights, but is widened to include the important principles of best practice OH&S & Workers’ Comp & Rehabilitation laws that are needed to achieve the basic human right for workers to be healthy and safe at work. It is important that all rallies to support you demand that our political leaders commit to this Charter and ensure that our national OH&S laws are very strong and not weak as could be the case. All progressive workers and Australian citizens are with you, Ark, as they keep dragging you into court hearing after court hearing. See you in December outside the Adelaide Magistrates’ Court.
A la lucha continua!
former union OH&S officer & human rights activist”