No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush

Australian politics is currently embroiled in a dispute generated by a contractor entering the telecommunications pits of the asset owner. Some, or many, of the pits contain asbestos and the contractor’s work, the laying of new fibre-optic cables, may disturb the asbestos. There are many other concerns but that is the nub.

The Australian newspaper has been running on this issue for many weeks but one article in today’s edition called “Tak​ing a dig: will Bill come up short?” (page 9 – online paywall), by David Crowe, caught my attention. Crowe reports that:

“The Aus­tralian has been told Tel­stra chief ex­ec­u­tive David Thodey wrote to Shorten in De­cem­ber 2009 to ar­gue against his pro­posal for a ‘‘proac­tive’’ pro­gram to re­move as­bestos from the com­pany’s pits. Thodey gave three rea­sons for not pro­ceed­ing: the cost; the risk of re­leas­ing as­bestos; and the fact plans for the NBN were in train but had not been locked in.”

I realise that the OHS legislative concept of “reasonably practicable” does not extend to all facets of life but if it were applied to the current asbestos exposure (and I think it could) Thodey’s three reasons given above would be crucial in any potential prosecution, particularly if the reasons in Thodey’s response to Bill Shorten were listed in order of priority. In OHS law, cost is the last element to be considered in determining a reasonably practicable hazard control measure.

Shorten contacted Thodey outside of his portfolio duties at the time but Shorten has always been a strong voice for asbestos eradication, as his actions since becoming Workplace Relations Minister have shown. From media reports Shorten expects business leaders to be on the front foot on safety issues, to be “proactive”, primarily due to his concern for worker safety but also because it usually makes good economic sense, especially in the longterm.

The current controversy is occurring in a climate of election campaigning but is fundamentally about the management by an asset owner of the workplace hazards being presented to a contractor. There are many questions both of OHS and contract management in this issue but a core question is should the hazard have been controlled or removed once the asset owner became aware that a contractor would be accessing and changing the asset? Would this action have been reasonably practicable?

Kevin Jones

reservoir, victoria, australia

20 thoughts on “No one is mentioning OHS prosecution in Telstra/NBN asbestos stoush”

  1. After thousands of deaths from asbestos exposure there has been either zero prosecutions (to my knowledge) or a small number (if any) about the manufacture, design or supply of asbestos products. Why start now?

  2. This post is still very topical and much has been revealed since the last contribution. I wonder what the current legal status is given that someone surely has made a formal complaint seeking action??

    Maybe Kevin could follow this up and give us all a heads up?

  3. Telstra/Telecom/PMG pits and pipes were manufactured using asbestos between the early 50\’s to the late 80\’s. Back the it was the ultimate building substance – light, strong, heat resistant…
    Someone mentioned earlier that there are millions of these pits right across Australia.
    When Pay TV rolled out in the mid 90\’s, huge numbers of these pits and pipes were replaced with larger plastic pits to accomodate the coax cable network.

    Obviously Telstra has been aware of the risks associated with asbestos for at least 20 years, but what has been done about it?
    People say that the pits could be treated and sealed, but the very action of opening the lid would wear away any sealant and start releasing fibres into the atmosphere.

    How many of their own workers have been exposed in the last 60 years? I would suggest that 50,000 field work employees would be a safe minimum number – significantly more I would expect.
    How many thousands of contractors and subcontractors have been exposed in the last 20 years?
    Add to that the number of Australian residents whose house has or had a non-plastic pit on the footpath, in the driveway or on their property

    How mature were safety management systems back in the mid 90s? How many SWMS or JSAs do you think contractors used?
    Digging out pits is hard physical labour – how many people would be doing that, wearing all of the necessary PPE, in the middle of summer, in Australia??
    How many of these contractors were doing civil work because their literacy skills limited them to this type of work?
    Were the risks presented by asbestos communicated to, and understood by, Telstra\’s own workforce and the contactors??
    Or was it a case of \”replace as many of these white pits with these black ones as quick as you can\”
    How much asbestos do you think has ended up in landfill because it was hidden underneath a few tons of dirt and concrete in a truck or trailer?

    And this is just the people removing these pits.

    Then you have the guys who have to access the same pits to connect or repair your telephone service – thousands of workers, hundreds of times EVERY DAY!

    I think we\’ve only just seen the tip of the iceberg in Penrith – its amazing it\’s taken this long for someone to ask \”Isn\’t asbestos dangerous – will my family be affected by what you are doing outside my house?\”

    This type of work has been going on for years and I have never seen the big plastic tents set up anywhere, let alone people running around in blue jumpsuits!
    If not for those residents in Penrith, we probably never would have, either!

    And by the way, a large number of ex-Telstra employees now work for NBN Co – executives, managers, supervisors and field workers (Where else do they go when Telstra makes them redundant?) so surely someone was aware of the condition of the network…

    Should be interesting to see where this all goes.

  4. Semantics seem to be entering the fray on the discourse. The bottom line to me is simple. Despite all the so called \”Controls\” the situation we see today is as serious as it gets, because we are not only talking about worker safety but public safety as well. Those controls and all the huffing and puffing amount to little and yes this deserves to be firmly in the political arena so that just maybe, people like Bill Shorten or his liberal counterpart can see to it that the law is enforced and greater penalties are in fact brought to bear on transgressors.

    It would seem to me that a \”New\” system is not required, just a thorough assessment that clearly indicates that there is more than just a passing chance that Asbestos may be disturbed by passing hundreds of metres of fibre optic cable through Pits along with the steel cap boots workers wear and other tools of trade aggravating the situation.

    The assertions I made have been misconstrued by Mark. My assertion is, that despite all the systems and controls being in place and the obvious plethora of OHS/WHS experts on the ground, there has been an absolute failure of duty of care. There is no thrashing about to ascribe blame, the MD of Telstra has already accepted that and determined a course of action.

    The Facts are the Facts, primary safety on this job is a fail and discredits the OHS/WHS community.

    So we now wait for a couple of decades and find out who ends up with Asbestosis and associated diseases. THIS IS WHERE OUR CONCERN SHOULD BE.

  5. ALL READERS. Please note that these comments are moderated and any insulting comments will be rejected. Several in this discussion have become heated but I have decided that the underlying points are valid. Please take care with your tone and keep the conversation constructive.

  6. Tom, WHS is a term in the majority of the Australian States but the readership of this blog is international and OHS remains the most recognised term. WHS is used when that legislation is being specifically referred to.

  7. I am also of the opinion that the comparison with the home insulation scheme does not stand up. The government was much more directly engaged in that scheme. I see the OHS responsibilities in this asbestos matter to rest principally with Telstra (and its predecessor PMG) and to a lesser extent with the NBN Co.

  8. Keith, I understand the risk based position very well but I think that asbestos is becoming a different type of workplace and social hazard. Tasmania has introduced a plan to eradicate all asbestos from that State.

    Clearly Bill Shorten believes more motivation is required of business seemingly on the basis of public health morality and he has also introduced various government agencies and initiatives for that task and to allow more formal and targeted debate on the issue.

    I realise the asbestos is in pits so for most of their lives the pits won\’t be disturbed but I think there is a heightened community sensitivity to any asbestos matter and the expectations are that wherever asbestos is found it should be remove and disposed of appropriately. Governments are expected to meet the desires of the public and outrage often focusses the political mind.

  9. Tony, I think the OHS inspectors do as good a job as they can given the level of resources provided by the government but the OHS inspectorate does not have responsibility for safety. The various OHS/WHS laws clearly place the principal responsibility on the employer or the person conducting the business or undertaking.

    You stress the need to comply but as long as compliance is determined on a risk basis and allows for \”reasonably practicable\”, compliance is not easy to determine.

  10. Tom, that\’s probably not a bad thought, but please be aware that INTERNAL job titles for the role vary greatly (I\’ve recently had Environmental Health & Safety Manager), which does not HAVE to reflect the title of the Act under which the role is operating. (And, yes, I\’m also in WA, so unfortunately politics raises it\’s head again.)

    Now, Tony, I\’m happy to be labelled \’contradictory\’ in my response, but if you wish to do that it is incumbent upon you to establish the points of contradiction. YOU were the one that ASSERTED, without any evidence, that there had not been any established safety processes or inspections established.

    As you seem to be contending that a NEW system should have been adopted for prior expert assessment of all work where there is known or likely low-level, contained asbestos \’contamination\’, then by all means, make the case. You seem to be saying that the 10 – 20% of asbestos-containing Telstra pits are a special, unique case and should be treated differently to any other maintenance/remediation works where asbestos could be encountered? (It seems that this is where this particular project is heading – but, again, not because adequate measures were not in place, but because the measures were not adhered to. That would be a \’fail\’ in my book too, but does NOT mean there was no planning or systems implemented, as you imply.)

    Yes, Tony, \’Fit for Use\’. That is the the obvious nature of the contract between NBN and Telstra. What, do you think the NBN have said, \”Yes, we\’ll take over all your pits, and any way they come is fine by us\”. Why else do you think Testra has budgeted $1B for this work – to get it \’fit\’ in order to meet the standards for the hand-over. If NBN HADN\’T insisted on this in the contract, it would amount to commercial negligence.

    Just where have I said or implied that responsible parties should receive only a slap on the wrist!!?? I am aware of the chain of Duty of Care and would be quite happy to see penalties sent right up the line, if appropriate – as is so rarely done here. (We can talk about Industrial Manslaughter statutes and the conviction of the principals of Eternit some other time.) HOWEVER, I am NOT prepared to stand by while people thrash around ascribing blame in a random, fact-free, often politically motivated way – as you seem to be doing, and as was done during the \’Pink Batts\’ uproar. So, yes, \’Pink Batts\’ are relevant here as there was much heat, smoke, sound and fury in the outrage then, but very little light and rational argument. Many see parallels, even if you fail to.

    My annoyance here is that a possibly systemic WHS failure is being turned into a political football and a rush to judgement and blame-game – not the best way to assess and correct ANY WHS failure.

  11. One final point…if your all experts on as you call it \”OHS\” perhaps you need to update you qualifications and terminolodgy to WHS as there is only two states left to change over and its high time we started to use the correct terms…………Telstra comes under WHS Laws and the WHS Act 2011 (Cth)…OHS only applies to Victoria and WA (until 2014).

  12. I believe Kevins opening remarks in relation to the regulators involvement re prosection is not only premature but unnecessary. Action, if required will be taken, dont forget the blame game and due process. This coul,d be a contractor/sub contractor issue and those subbies as PCBUs will need to be held accountable as well for their actions or inactions as the case may be

  13. Keith, you are quite correct that non-friable asbestos if not disturbed is quite safe, however isn\’t the issue at hand that the asbestos containing material is being disturbed and/or at risk of being disturbed.

  14. There is no doubt that issues like asbestos come to the fore once they hit the media, This is not to understate the potential impacts that asbestos exposure has on the population. Another recent example is hazardous substances being able to cross the plant boundary example Orica, constantly under the media microscope.

    I believe for safety professionals and the role that we contribute to ( within our delegated responsibilities and accountability) should be to advise and provide guidance to establish a safer workplace.

    Is not this issue (asbestos NBN) related in the majority to contract management. If not ( not known to me what the site relationships where at the time) if convention is to have a Telstra Supervisor on site, this is then a process issue.

    Keith I agree with your sentiments that an appropriate approach would be to reach a strategy for undertaking work around ACM (with at least legislative compliance reached) to be developed (consulted) through an appropriate risk assessment process that considers quantitative information.

    Development of a register and communication, information and training remain key contributors for any success of the asbestos plan.

  15. Mark, Thank you for your critique. I am quite at peace with being called \”insulting\” in my assertions,however the contradictory nature of your response is not helpful.
    1. If the OHS mitigation standard is for the current situation to have been arrived at, then it has been spectacularly successful.
    2. It is the responsibility of Telstra to ensure that the contract with NBN is being complied with, in this case a fail mark.
    3. It is also the head contractors obligation to comply with the contract in its entirety including all matters relating to OHS, in this case a fail mark.
    4. Fit for use infrastructure, I think not. In this case a fail mark.
    5. I am not sure what you are alluding to in your comment at paragraph four of your comment, my assertion is that \”EXPERT\” teams should be ensuring compliance at all levels for infrastructure that needs to be accessed by sub contractors and if the sub contractors have not been specifically and fully trained in working where asbestos is part of the infrastructure then it is a massive fail right back to Telstra.
    5. If Telstra is in the process of preparing and remediating asbestos related pits and other asbestos related infrastructure then that has been a massive fail mark, otherwise we would not be hearing about the subject of contamination. There is no politicisation in my post, just a statement of fact and opinion take it or leave it as you prefer.
    6. After the fact investigations are not necessarily the point, although we do need to know who is responsible for allowing this travesty to occur. What is the point, is there is a requirement for proactive inspectorial oversight of projects this large at the coal face and I for one, would like to know how many unannounced site inspections by OHS inspectors have been undertaken to ensure compliance with all laws of the state and policies developed by Telstra and NBN Co.

    Responsibility and accountability are part of doing business and when you have an adverse event such as that which has now been exposed, then somebody has to wear the consequences. Are you seriously suggesting we just give someone a smack on the wrist and send them to the naughty corner.

    There are well over a million Telstra pits around Australia and even they don\’t know how many are made of asbestos, let alone other Telstra infrastructure at the road side exposed to the public.

    The Pink Batt\’s matter you refer to is a furhphy and bares no resemblance to this situation.

    Mr Thodey of Telstra communicated on the matter of Asbestos in a letter in 2009 to Bill Shorten according to Kevin\’s Blog. So maybe Mr Thodey\’s scalp should be in the frame because he was fully aware and reasoned against removing the Asbestos Pits rightly or wrongly, but needing to be determined.

  16. I believe this issue is blown out of all proportions. I say this because the legacy of Asbestos in Australia is everywhere. It is well recognised that non-friable asbestos if not disturbed is quite safe. This is the type of Asbestos found in many Telstra cable pits. The cost to replace the pits will be considerable, and when compared to the risk it does not stack up in my view. Certainly there is an opportunity to replace the cable pits during upgrades/ modifications (like the NBN rollout). The correct approach is to lable the pits as having asbestos and keep an up to date register
    In my 24 years as an OHS Professional this approach has been the norm, and been the approach recommended by every OHS regulator in Australia.

  17. Sorry, Tony, but I once again have to take issue with you. You are making several unfounded or downright erroneous assumptions – not a process driven approach to OHS risk mitigation.

    Your first frankly insulting assertion is that, \”all of this should have been in place before they started\”. Are you seriously suggesting that the owner (Telstra) does not have in place absolutely prescriptive workplace and contractual obligations, SOPs, SoWs etc for both its own workers and subcontractors? You are joking, aren\’t you? Clearly, its not the ABSENCE of safe procedures, but the failure to follow them that is the issue.

    In addition, I am given to understand that the Head Contract between Telstra and NBN Co is absolutely explicit on the subject of the known asbestos risk and the attendant requirement for Telstra to hand over remediated \’fit for use\’ infrastructure.

    Secondly, you completely misunderstand the nature of the work. It is NOT the NBN roll-out workers that are involved! In fact, as is very clear from all the media reports, it is the workers DOING EXACTLY WHAT YOU ARE PROPOSING that have created the problem!

    Telstra is in the process of preparing and remediating the pits in advance of the hand-over to the NBN for roll-out. They are working approximately 6 months ahead of the roll-out, so to characterise this as a result of \”shoddy planning\” and a \”hurried approach to catch up\” is contrary to the facts and smacks of unhelpful politicisation in your post, rather than a reasoned OHS analysis.

    With Comcare and State \’Workcovers\’ etc involved, are you really suggesting that no investigation is ongoing? Why are you implying that no-one will be held responsible and accountable? Is this \’Pink Batts\’ all over again where you want to see the Federal Government held accountable for a contractor 3 levels deep failing to follow required Safe Work Practices and breaching legislation? It certainly seems like it. Not very helpful.

  18. Where were all of the inspectors charged with applying regulation in the various jurisdictions while all of this was happening?????

    Once again the system fails and the talk fests continue. There are no shades of Grey in this particular instance. The deal is, comply or people Die.

    While I accept Les Henley\’s view, it is of diminished value after the event and all of this should have been in place before they started lifting the lids of these pits. There should now be dedicated expert teams moving ahead of the contractors remediating the pits so they are safe for access and work.

    The NBN is vital to the future of Australia, yet the shoddy planning in terms of roll out time and now the hurried approach to catch up is fraught with danger for the workers and public and someone or some group needs to be held responsible and accountable.

  19. Many of us in Facilities & Asset Management are watching closely!.

    Assuming the news has been accurate to date I make the following comments.

    Western Australian courts have made recent rulings with regard to a Utility choosing Corporate polices and positions to ignore that which we on the front line have been crying support for. You must know what and where Assets are present, and know the condition…and they must be maintained according to a risk regime.

    You cannot use a \”run to fail\” mentality when lives are at risk.

    Clearly the pits should not have been treated as per the news reports, It is a failure at field supervision level for the actual handling of asbestos items AND Executive level for permitting the risk BUT when highly paid executives are making decisions and supporting recommendations which \”push back\” against good practice as any competent person will have been highlighting, it is time the specific management paid a price. In the Western Australian case, a young girl in her prime died from electrocution, and 3 others injured attempting a rescue – it should never have happened, did not need to happen.

    Can we assume that WorkCover etc are investigating with a view to prosecuting any offences?


  20. The issue of \’reasonably practicable\’ can only be known once all options for control of the hazard have been identified and assessed (risk reduction and cost/benefit analysis) as to which option would provide optimum risk control for optimum spend.
    Eg: there may be a process whereby the surfaces of the asbestos pits could be sealed to prevent fibres being released that may be as effective in reducing the risk as replacement of the pits.
    This approach has been adopted in may workplaces with great effect in protecting workers from exposure whilst providing a better cost option for the PCBU than total removal.
    Obviously such a solution would only work if the actions of the work being undertaken would not destroy the sealing elements and negate the risk control. And only those involved in the work could know the details to assess that.

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