Interview with Dr Gerry Ayers

This weekend is the International Workers Memorial Day.  In Victoria, in particular and in Australia more generally, it is highly likely that the issue of Industrial Manslaughter laws will be raised as part of a trade union campaign.

Dr Gerry Ayers, the OHS&E Manager of one of the branches of the CFMEU, features in an online petition about these laws and it seemed the right time to interview Dr Ayers about these laws but also about workplace health and safety enforcement and practices more generally.

The full audio of our conversation is available in the Safety At Work Talks podcast available on SoundCloud and Podbean.

SAWB:           Gerry I’ve seen your photograph on various petitions and flyers about industrial manslaughter laws in Victoria where the trade union movement is asking people to sign petitions and pressure the government into bringing in industrial manslaughter laws.  Why is the trade union movement doing this now and what’s the purpose of the laws?

GA:     And it’s a bit like what the industrial campaign is all about, it’s rules are broken, or our rules don’t seem to be working in terms of the legislative framework and the sanctions that are afforded to people when they break the OH&S laws and when it all goes horribly wrong and someone is killed. It’s very rare that the full financial penalty is ever applied to any employer who goes to court for a workplace fatality.

There’s a couple of points that I’ll make about fines.  Fines don’t ensure that offenders restructure their workplace to comply with OH&S standards.  Fines only have an impact upon the financial returns of the corporation and not on the motivation or behaviour of the responsible managers.  Fines do not ensure any disciplinary action is ever taken against those who should be held responsible and accountable, especially in cases where the hazards and the risks were previously known.  Fines don’t require management to review their systems of operation so that the offence will not reoccur.  And finally, fines are easily avoided by restructuring the corporate structure or identities or by moving the organisation’s assets to other corporate entities.

I suppose the most insidious thing about fines is that we know that some companies will take out insurance so if they do get a heavy financial penalty they don’t pay, it’ll be the insurance pays.  So in terms of a punishment or being, people being held accountable, I think fines fail that whole notion of reflecting society’s intolerance of a workplace fatality.

SAWB:           But the application of fines has been the core penalty in OHS for decades.  So the same situation, the same deficiencies, have been around forever.  What’s changed now? Has it been an accumulation of frustration where monetary penalties aren’t working so we’ve got to do something different and the trade union movement’s decided the industrial manslaughter laws is the strategy?

GA:     I think we had this debate back when we did the OHS ACC review for the 2004 Act and it’s almost there was this, not patronising but, approach by the government and, I think, the WorkSafe Authority at that time which said “no, no, no we know best”.

I don’t think they do know best in the sense that fines haven’t prevented the fatalities occurring and there’s little disincentive to do the right thing.

I think it will be inevitable that they will have to bring in some type of industrial manslaughter simply because when you kill someone through your inactions or actions you should be held accountable and, like we said before, the monetary penalties don’t seem to be able to do that to such an extent where people are, for want of a better word, frightened of the outcomes, there’s no disincentive to play.  People play a game of probability with worker’s lives and we’ve seen that time and time and time again and when it all goes horribly wrong those people should be held to account.

SAWB:           But the legislative structure has been created to allow for that probability, I would argue that it encourages it, in terms of having a vague line of compliance. We have a situation where we can encourage people to take the risk because compliance is not as clear as it used to be. We also have a small number of inspectors comparable to the industry, and it’s still unlikely that you’ll be prosecuted.  I suppose we’re focussing on industrial manslaughter as being an ultimate deterrent, there’s an increased incentive to improve, but it won’t change the likelihood of being prosecuted or the likelihood of being inspected or necessarily?

GA:     I think the intention is having the ultimate penalty for someone who through their action or inaction has resulted in a workplace fatality.  It’s not about “well there’ll be more prosecutions”.  WorkSafe do, and they keep telling us they do, a lot of prosecutions.  But if I run a red light in my car and I kill someone through my action, it might not be deliberate, I might have been in a hurry, whatever, I can lose my licence and I can go to gaol.  If I am caught drink driving or I have had far too much to drink and I jump in my car and I kill someone in my car I will go to gaol.  If I’m an employer and I kill one of my workers through not doing what I should have done, I’ll get a fine and most likely it’ll be around about the $50,000 mark maybe.  If [I am an employer and] I get caught, the worst that could happen to me is a financial penalty.

SAWB:           You’re not the only unionist who’s made that comparison and I suppose one of the aims of the industrial manslaughter campaign is to make it comparable to taking the life of somebody else through negligence in your cars or some other way.

GA:     Through negligence, yeah.

SAWB:           In relation to it being the right time for an industrial manslaughter campaign, I would say that it’s an acknowledgement by the trade union movement that we haven’t been able to get traction in the level of change of inspectors, prosecutions, enforcement policies and therefore the best opportunity is to be able to get to industrial manslaughter.  It’s almost an admission that we haven’t been able to effect and improve the processes.

GA:     I think it’s an acknowledgement that it’s enough.  You know we live in the so called clever age of technology and systems, we live in an age of 2018 and we’re still killing people, and I’ll use our industry, the construction industry, we’re still killing people onsite totally unnecessarily, completely avoidable.  We’re actually still exposing workers to insidious amounts of asbestos unprotected and there’s a case we’re dealing with now where these workers, the employer knowingly had them drill, cut and sand asbestos containing rendered walls because they admitted that they knew, they had the scientific tests, they didn’t tell anybody, they knowingly allowed them to bash through asbestos containing cement sheet walls, didn’t tell them that they were asbestos cement sheet walls, and these people now are on a time bomb.

But in the year 2018 when someone gets killed at work, an employer can just walk away. I think some people still see it as a cost of doing business in our industry.  I don’t know if it’s an acknowledgement that we need to have more prosecutions and we’ve failed to improve the overall standard. I think it’s now an acknowledgement that we’ve had enough, and it has to stop.

We’ve got the International Workers Memorial Day coming up this Friday on the 27^th, we’re going to be standing in the exact spot we were standing last year and we will call out I don’t know how many names but already in this year up to April I think it’s been nine people killed in Victoria.

That’s just obscene.  There’s nine families who are never going to be the same and when you sit with some of the families, which we have done only a couple of weeks ago, it’s devastating.  And they look into your eyes and they say “Why?”  There was the systems in place, people knew what to do, why didn’t they just do it?  And we’ve got to say we don’t know.  I know, because people have just played that game of probability. And if it takes someone going to gaol for someone to say I think I’ll put away my dice and I’ll do the right thing, that’ll be the success.

SAWB:           One of the answers to the why did it happen is because the employer decided that your partner’s life was worth less than a deadline or a profit.

GA:     Deadline/profit margin, yeah.

SAWB:           There’s no comfort in that.

GA:     No.

SAWB:           But that’s the reality.       The ACT has had industrial manslaughter on their books for a long time and I remember the, when it came in, you know, the sky would fall, and it would just be atrocious. It took over 10 years for a prosecution to be pursued under industrial manslaughter laws.

Given that people want to see comparable penalties and they want to see some justice do you think that each workplace fatality will create a call for industrial manslaughter? we’ve got to charge you with industrial manslaughter?  I can’t see the community is going to be tolerant of a decade wait before the first prosecution.

GA:     I hope it would work something like the road rules. ….Those who have control of that workplace, who are in the driver’s seat for want of a better word, those who make the decisions, if they’re found by their actions or inactions that cause that person [to die], they should be held accountable.  The threat of imprisonment is a far greater deterrent than the non-threat, but [researchers have] also found out that the threat of prosecution generally leads to thoughts of self-protection in that it keeps the manager’s mind firmly focussed on safety.

The threat of the prosecution generally encourages and dictates that managers be much more vigilant with their documentation, including writing things down.  So if they’re going to say to someone you do that work, I know it’s unsafe, and it’s written down, well that’s going to really make them think.  And the threat of that prosecution will generally make managers ensure that all of their employees and their sub-managers implement and abide by the agreed rules and procedures.  Now that’s a really good starting point.  Will there be a prosecution immediately after it’s brought in?  I’d hope not because that means someone’s had to die.

We know there are going to be fatalities because of the way our society works.  We know people will still drink and drive; we know people will still run the red light; we know, especially with building workers, someone’s going to die because time and money and a whole range of variables all come into play.  It shouldn’t.

We were talking before, about the chap who was building his house on one of those architectural home shows and it’s taken him 10 years and he’s done it really slowly.  I know the commercial reality is you can’t do that but the timeframes of some of our commercial buildings, we know, and the builders know, they can’t complete that project in that amount of time but they still sign on.  And they talk about, you know, people doing their due diligence and their risk assessment, your due diligence should say we can’t do it, it’s impossible.

SAWB:           Or we can’t do it safely within the, within that timeframe.

GA:     We can’t do it safely in that time.

And that has to change somehow, and I think the regulator should have a bigger role to play, whether they will or not, because I think the regulators drop the ball in terms of compliance and enforcement.  I don’t think they apply the intent of their own compliance and enforcement policy.

I don’t think they actually represent the full intention of that compliance and enforcement policy and the thing about in our industry there’s a compliance tool which they call voluntary compliance.  … From July 2016 to June 2017 in the general and civil infrastructure sectors of our construction industry WorkSafe issued only 27 prohibition notices but 694 voluntary compliances.  Now that is an industry where it is high risk, it is one of only three regulated industries in the state and we know people die, and they’ve only issued 27 prohibition notices.  Which says we must be travelling so well that we don’t need to do anything else.  We know that’s not the case but they go and give 694 voluntary compliances.

Now we’ve challenged WorkSafe because, depending upon who you ask, the voluntary compliances are very difficult to drill down into data to see what’s really happening in the industry because they don’t seem to keep the data to say it was a voluntary compliance for faults, for electrical, for cranes, for whatever it is, and we have the same builders getting voluntary compliances for the same issues time and time and time again.  Something’s not right.  They need to take a much stronger enforcement approach.

There is always a role for training and education, but you could imagine the public uproar if the same driver keeps being caught for drink driving or keeps being caught going through red lights and all the police say is go on our website and there’s a great guidance note on how to drive safely.  And that’s what we’re kind of left with.

SAWB:           So, let me take the driving comparison as a discussion point here.  The UK experience seems to be on industrial manslaughter that medium-sized companies and small companies are being prosecuted on this rather than the intended target of the large corporations.  It’s easier to identify negligence in a car driver because you’ve got one driver.  With multiple drivers in large corporations and in contractor management and in the construction industry, how are we going to be able to cut through to the decision makers, if it’s so complex to prove?  This has been a barrier in the past on reckless endangerment and a whole raft of other high penalty, high consequence actions, how will industrial manslaughter cut through this?

GA:     It’s always going to be a problem in trying to prove that that CEO knew exactly what was going on.  And we’re seeing it in the Banking Royal Commission now.  Eventually someone needs to be held accountable and if I’m a CEO of a company and I don’t know what my subordinates are doing, I’m responsible.  I need to know.  I don’t need to know every time they turn a page or every time there’s, in the construction side of things, a pot of soil is turned over or a floor’s been poured, but I need to know that I have people who understand the systems at work. I need to know that there is adequate supervision on all my sites.  I need to know that all my people have been trained in not just construction management but the safety and the implementation of those systems.  I need to know that those systems are up to date.  I should know, and I must know, that I’ve got the right people for the job and if I don’t I wouldn’t be much of a CEO, you know.  There’s no real qualification for any CEO, they’re generally great story tellers and fundraisers and, but they really need to do a lot better.

And it’ll be interesting to see what happens in the Australian Capital Territory because there’s the Multiplex [prosecution]I think it’s the CEO who’s been charged.  Now I’m not across that case but I’ll be very interested to see what kind of approach or road that goes down in terms of evidence and what they should know and what they don’t know.  And I think the whole problem with our construction industry is maybe our supervisors aren’t adequately supervised.  It’s the whole thing, who’s auditing the auditor.

GA:     Who’s supervising the supervisors, who’s making sure that they understand completely, have I got the right people, have they got the right experience, have they had the right training.  You know we keep hearing safety’s our number one priority, it’s not. Profit’s got to be the number one priority for any organisation, that’s fine.  Safety should be a real big part of that.

SAWB:           There’s a growing trend in the community that we’ve lost faith and trust in institutions that used to keep us safe and regulate all sorts of business activities.  There’s a lot of people who are not looking to the immediate regulator for satisfaction and justice, quite often, because the regulator might choose not to prosecute. But the death would still get investigated through a coronial process.

People seem to be having more faith in other systems of investigation, such as Royal Commissions, coronial inquiries, boards of inquiry, rather than the regulators.  How can regulators regain the trust of the community and the union movement, in terms of keeping workers safe?

GA:     I think they have to go out there and do all the hard work. Having so many voluntary compliances sends a message to a builder, and I think we’re breeding an underclass of builder who says well if I get caught not doing the right thing, so I don’t have scaffold to provide edge protection, I don’t put proper traffic management out to protect both my workforce or the public, I don’t get that asbestos removed I just work with it, if they get caught they’re going to get a voluntary compliance or high chances are they’ll get a voluntary compliance which means listen you can’t do that you better fix it up straight away.

If people want to get trust back into their regulator they need to start putting on notices and they need to start stopping the work. They’ve got the tools, they’ve got to apply the tools.

[Employers] used to understand and they used to have a lot more respect for OHS Inspectors enforced the rules. Now that used to happen and there used to be a bit of, not so much fear but, respect where the workers or the OHS rep or the union official would say I’m going to call WorkSafe and it would almost be “oh hang on, hang on, hang on you don’t have to go that far, that’s not necessary”.

Now we say we’re going to call WorkSafe and they say, “oh no they were here yesterday, here’s the notice they gave us or here’s the entry report or they were here yesterday, it’s none of your business, bugger off”.  And you’re almost left there scratching your hard hat because you’re not quite sure what they did, you’re not quite sure where they looked.

I say that the construction site’s a bit like a jigsaw puzzle, so many pieces, they all fit together eventually but often we’re finding the regulator will only look at one particular piece and not how the piece fits in the jigsaw.  So they’ll look through the keyhole but they’ll get a very blinkered vision rather than opening up the whole door and going “oh that’s what’s happening”.  So that piece fits with that piece and then when those two pieces come together that goes over on that piece.  So they kind of look at things in isolation or, in their terminology, silos rather than the whole picture and I think some of the problems are that their key performance indicators probably need to be revisited about how they operate.

It’s also, like any organisation, they go through cycles of losing a lot of experience so they’ve got some young people.  There’s some still really talented incredibly smart people in WorkSafe, don’t get me wrong, but I think their key performance indicators probably need to be revised and restructured and I think their whole approach, especially in the construction industry, needs to be revisited in terms of what they’re looking at and how they’re looking at it and then what they do if there are things wrong.

And the perfect example is the demolition site in North Melbourne which collapsed and the poor WorkSafe bloke was there almost supervising and that’s probably unfair on him but it’s a perfect example to say that site should have been stopped before it got to that point, just should have been stopped.

I don’t know whether he was young or inexperienced, but WorkSafe need to look at who’s doing what and how they’re doing it and how they mentor their people, what expertise they’ve got.

And there are a lot of different subsectors of our industry.  You know there’s the asbestos, there’s formwork, there’s cranes, there’s precast panels, there’s block laying, there’s all these subsectors, I don’t know if they’ve got the expertise currently in that inspectorate to make the value judgments that they need to.

SAWB:           Let me then talk about WorkSafe in the industrial manslaughter context.  Industrial manslaughter laws is an option to pursue, to prosecute and the prosecution would be undertaken by the WorkCover Authority or the OHS Regulator.

GA:     That’s what we’re not sure yet.

SAWB:           Okay.

GA:     Trades Hall would be sitting down with lawyers and legal experts to figure out what kind of model to apply.  Is it best to do it just through WorkSafe, is it just best to do it through the DPP, is it best to have a bit of a combination of both? Do we follow the UK model, do we follow the Queensland model?  I think we’d be best to look at the best of all of those models and come up with a really good system.

Just because you have industrial manslaughter laws doesn’t necessarily mean you’re going to use them every time for every case.  Every case has to be judged on its merits with the evidence and what you find in the investigation.  I think that’s a really important point as well because we’re seeing that sometimes WorkSafe will take a one-sided version over the phone about an incident.  They won’t attempt to verify or validate what they’ve been told by an employer over the phone.  So instead of then phoning up the OH&S rep if they know there’s one or instead of, I don’t know how they’d do this, but tease out some other really pertinent questions, it’s taken for granted that what they’ve been told is actual fact.

And we’ve come across a lot of cases where it’s not always factual.  Not so much lies but it’s quite a misrepresentation of the events and I think that needs to be looked at because again people lose faith when there’s a serious incident.

We had one recently where a …. ball hit the top of the Alimak, really damaged it, the employer said “oh it was just the chain hitting it on the edge”, so the WorkSafe inspector said he didn’t need to come out.  We got out there straight away.  Our people called WorkSafe, demanded they come out, and they put prohibition notices on the Alimak, on the crane, and had to get engineers in.  That was a perfect example of a complete misrepresentation of the factual events and that needs to be looked at about how they actually, I think in their words, triage incidents when they get only a verbal over the phone by one party.

SAWB:           It always surprises me that the regulators rely on only words when the vast majority of people have the capacity in their pocket to send a photograph of the potential damage or the damage in the incident that’s occurred, in support of the notification to WorkSafe.  Now I know there’s still dodgy things you can do with photographs but there’s an additional convenient source of information that the regulators can encourage the notifiers to provide.

GA:     And I think if they know there’s an OH&S rep they should then phone the OH&S rep, not on the same phone because you don’t want them to speak in the office with the employer, but the OHS rep should have the autonomy then to be spoken to by WorkSafe and say well actually this is what occurred, you might have been told something, my version of the events is, and if there’s a conflict surely that will be the trigger to then say we better attend, don’t touch anything, don’t do anything.

I think WorkSafe are too quick to quickly tick off in case they upset the builder and, rather than just stop, slow down, we’ll be out there, we’ll have a look, if what you’re telling us is true then sure you can go back to work, you might lose a couple of hours, so what.  And again if a program can’t afford to lose a couple of hours you have a problem with the program and we shouldn’t be overlaying program imperatives, imperatives sorry, over the OHS imperative especially if safety is the priority.

SAWB:           A couple of months out from the election the Queensland Government announced industrial manslaughter laws and at the same time they also said that they would be banning insurance products that would cover the cost of financial penalties which you’ve already touched on before. It seems to me that banning these products will also send the similar message to people about accountability.

GA:     It’s an abhorrent thought that people would insure their corporations to absorb the cost if there is someone who is killed at work.  I think morally, it’s morally reprehensible and it’s ethically bankrupt.

SAWB:           I just wanted to quickly mention the Royal Commission into banking and financial industry in Australia, which is revealing enormous malfeasance and illegal activity and immoral and unethical practices in large institutions. I suspect that that’s going to have a much broader impact on corporations.  Do you see that safety might get some benefit from this or is it going to stay within the financial risk management?

GA:     I really hope it does get a bigger play and it does kind of then flow onto the OH&S side of things.  You know there’s a moral and a social obligation when we’re talking about keeping people safe and healthy at work.  There’s an ethical obligation and then I think there’s a social responsibility.

I’ve given a couple of lectures about social philosophy because you can have the Act, you can have the legislation, you can have the legislative framework in place, you can have the penalty such as industrial manslaughter, but ultimately it is up to individuals who are part of an organisation.  The ethical obligation is part of what people call the culture, and I’m not a great fan of that term because I think it’s a bit like that term blaming the worker, it’s the culture of the organisation, so it’s always the culture.

I mean Andrew Hopkins put it best, that there’s so many different definitions of culture you can’t pin it down, like you’ve just said. I’d much prefer to say it’s management practices.  So if you have good management practices you’ll have good outcomes.  Don’t worry about the culture, the culture will look after itself, whatever that is.  Okay but the moral obligation of individuals is very important but I think it’s the organisation which will allow those moral obligations to be either freely expressed or suppressed.

If the management practices don’t allow someone to speak freely and say that’s wrong, I know what the legislation says, you know I know that we don’t have to provide fall protection until 2 metres, but here’s a 1.9 metre fall, we need to put a handrail there because there’s some start bars here. But if the organisation then doesn’t allow that person to make that moral and socially responsible call then that’s a problem.  So there’s an ethical obligation, there’s a moral obligation and there’s the legal obligation.

If we can just perhaps hopefully focus on the bank’s moral obligation and ethical obligation, if that can flow through, I think it should have a, could have, I don’t know should, it could have a much better effect on the OHS outcomes.  I’ll wait and see.

SAWB:           So industrial manslaughter laws then are, to a large extent, a catch-all, bringing business attitudes and people’s expectations up to the standards of what the community expects and that there’s some equitability on penalties and consequences of your actions.

GA:     I suppose if law is meant to be a reflection of society’s values then I think the natural progression and the natural outcome is industrial manslaughter laws.

When you speak to people who have lost their loved ones in a workplace accident it’s abhorrent.  There’s a heinous event which has taken place and society should be saying it’s wrong and no more.  And I think until we do that this is one way to reflect society’s values because in no other approach in life are you allowed to kill someone and just walk away with a fine.

Kevin Jones