The debate on OHS laws will be passionate in the pre-election frenzy of New South Wales but the OHS law reform is a national strategy and the safety debate is not asleep in the other States.
On 11 February 2011, AAP ran an article about the long-lasting familial and social effects a horrible workplace incident in South Australia in 2004. Diemould Tooling Services (fined in 2009) took its appeal against prosecution to the High Court of Australia in 2008 and on 10 February 2011, almost six years after the death of 18-year-old Daniel Madeley, South Australian Coroner Mark Johns has said, at Madeley’s inquest:
“A horizontal boring machine had been operated at Diemould for years in a condition which could only be described as deplorably unsafe. It could have been guarded, but was not. It could have had a braking system, but did not. It could have had an automated lubrication system, but did not.
“Many other things could have been done, but any one of these would have been sufficient to save Mr Madeley’s life….”
“The horizontal boring machine by which Mr Madeley was entangled was an old machine that was probably built between 1960 and 1970. It was manufactured in the USSR as it was then known, probably in Russia. The machine had no guarding or other safety devices that might have prevented the occurrence of an event such as that which took Mr Madeley’s life. Indeed, the only safety device incorporated into the machine, if one could describe it as a safety device, was the ‘emergency stop’ button. The emergency stop button did not operate any differently from the ordinary stop button on the machine. Its only distinguishing feature was that it was a larger, more obvious button than the ordinary stop button.”
The situation the coroner describes above is very common. Only recently a caller described how he was unable to use a $A120k boiler that he imported from Germany because the certificates it came with were for a size of boiler much smaller than was purchased. There were dozens of electrical issues with the machine and the owner of the machine did not know where to turn to for help.
The importation of plant to Australia is a continuous problem for companies and will not change unless there is a national strategy to inspect imported plant before its local use. One has to wonder why dangerous equipment is allowed into Australia. It is clearly not enough, on the matter of plant, to place the full responsibility on the employer. Victoria’s OHS laws on plant changed in 1995 and removed the specialist inspectors of boilers, pressure vessels and a range of other equipment. Unguarded and sub-standard plant, and the injuries and deaths that result, is the legacy of that decision.
The coroner was particularly critical of the evidence provided by several Diemould employees and witnesses. Coroner Johns says some of the evidence was to “curry favour” with the management and was dishonest and “less than frank”. He was particularly critical of a Mr Remfrey who is a toolmaker and who continues to be employed by Diemould, as the example below shows:
“I find that Mr Remfrey was keen to present himself in a manner that would curry favour with the management of Diemould. In that endeavour his evidence to the Court was less than frank. When he was questioned as to whether there was anyone from Diemould present in the body of the Court at Transcript, page 102, he answered, initially, ‘no’. He then sought to obtain further information from the Court to qualify his answer: ‘that is employed at Diemould?’. When the Court responded in the affirmative, he answered that there was no-one from Diemould present. Thus, his final answer was technically accurate in that there was no person presently employed by Diemould present in the Court.
However, he was well aware of the fact that the Managing Director’s wife, who was intimately involved in the affairs of the company (having been present at the meeting of all of the witnesses only two or three weeks prior), and who had previously been an employee of Diemould, was in fact present in the body of the Court. His initial response to the question was to deny that there was anyone from Diemould in the body of the Court and, in my opinion, his initial response was one of dishonesty. However, he corrected himself by employing the device of seeking to clarify whether the question was directed at any employee of Diemould.
Having received an affirmative response from the Court he proceeded to deny that there was an employee present. I n my view this shows a reluctance to be cooperative with the Court and a desire to assist Diemould.”
The Coroner also stated that
“As a result of the way in which the evidence unfolded, I formed a preliminary view that certain of the Diemould witness, in particular Mr Remfrey, Mr Chalil, Mr Welling and Mr Shaw, were guarded in some of their responses to the Court. When it became apparent that there had been a meeting of those witnesses and a number of other witnesses, I was concerned that there may have been coaching or other inappropriate influences brought to bear upon prospective witnesses.”
He felt that coaching had not occurred but the conduct of Diemould employees and witnesses cast a pall over the proceedings that the coroner was determined to counter. The coroner states clearly that nothing improper occurred at a meeting prior to the inquest but it created an unnecessary complexity.
“…it was unwise on the part of all concerned to have held such a meeting of all potential witnesses immediately prior to the Inquest, gathered all together in one place, particularly the premises at Diemould, to discuss the Inquest.”
“In my opinion, that attitude [of hesitation and reluctance] is more likely to have grown out of a culture that I find was prevalent at Diemould in the period up to 2004 and following.A culture that was led by Mr Neville Grose, the then Managing Director of Diemould.”
Further to the culture references above, the coroner discusses the continuation of the business and the change in management at Diemould following Mr Grose’s death around 2004. There was a cultural legacy of animosity towards SafeWorkSA and its inspectors. One inspector was reportedly described as “an aggressive bitch”.
Coroner Johns is very critical that SafeWorkSA seemed to leave the primary responsibility for occupational health and safety with the employer yet this is the legislative situation in many Australian States. Indeed the new draft Work Health and Safety laws broaden the employers’ role to that of persons in control of the business or undertaking but the duty of care remains the same.
Division 2 Section 19 says
“Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.”
The coroner implies that the lack of inspections to South Australian workplaces by SafeWorkSA was of relevance:
“A regime of proper inspection by SafeWork SA and the issuing of improvement notices and prohibition notices might, if conducted prior to June 2004, have identified such an obviously unsafe machine as the horizontal borer and prevented its further use until it was rectified.”
This seems to be very unfair. All OHS regulators are restricted in the level of inspection resources they are funded for by government and the duty for a safe workplace resides with the employer.
Indeed some of the comments of the coroner question a core element of Australian OHS law and enforcement:
“In my opinion, the system of leaving industrial safety compliance to employers and then simply prosecuting them once an employee is fatally injured, is inadequate and insufficient. A rigorous system of inspection and a full use of the range of improvement notices and prohibition notices would be a far more effective way of preventing accidents such as Mr Madeley’s.”
Safe Work Australia and governments may need to forensically analyse Coroner Johns’ findings for maybe the legislation is heading in the wrong direction.
The coroner has a stronger argument when asking about the delay for an inspection blitz on similar machinery. Regardless of a blitz finally occurring in the same month that the coronial inquest began, it is a fair question to ask, why did an inspection campaign into similar machines to one that had resulted in a workplace fatality take almost 6 years to occur?
And what of justice
This article began with an AAP article about a mother’s grief. The coronial findings similarly address the impact of industrial incidents on families. The coroner suggests:
“…that the Government consider a major reform of the current system of criminal prosecution for fatal industrial accidents. In my opinion it is just wrong that the prosecution of Diemould took 5 years to arrive at a plea of guilty. There must be a way to improve that. It seems to me that the family of a person killed in a workplace accident may be better served by seeing an open public inquiry convened within 12 to 18 months of the accident, than a criminal prosecution which might never result in the public hearing of any evidence, and which takes more than three times that long to even start.”
There is much in Coroner Johns’ finding to consider both in law, justice and the administration of OHS.