Federal Politics


Our year of working dangerously

With an unprecedented death toll on ACT construction sites, a proposal for an industrial magistrate for safety infringement cases offers workers hope, writes Emma Macdonald.

It's rare that a senior public servant comes face-to-face with death as a normal part of the working week. But for ACT WorkSafe Commissioner Mark McCabe, it's a gruesome and all-too-frequent part of his job.

In the past year, McCabe has been called to the scene of four work-related deaths in the ACT, a figure which gives the territory the unenviable title of being the most dangerous place to work in construction in Australia.

While the ACT has less than 1 per cent of building and construction activity in the country, it has recorded four of the 34 industrial deaths which occurred nationally in the past year.

That means less than 1 per cent of activity but almost 12 per cent of the fatalities.

McCabe declares it ''an annus horribilis''.

''I'd be really alarmed if we faced this sort of number again next year. In fact, the whole community would be alarmed - with very just cause.''


Certainly, the ACT government was alarmed - with Attorney-General Simon Corbell calling an inquiry into health and safety laws on Canberra's building sites in August. The inquiry, headed by former public service commissioner Lynelle Briggs, and assisted by McCabe, reports to the government on Friday.

Its seven terms of reference include examining the ACT construction industry's safety compliance in light of the national and international experience, looking at systemic or cultural behaviour on local construction sites, labour practices and federal regulation, safety training, and compliance strategies and enforcement.

Four workplace deaths in just under a year is unprecedented in the ACT. Safe Work Australia reports there were no work-related fatalities in the territory in 2009-10, two in 2008-09, one in 2007-08 and two in 2006-07.

But the deaths have been accompanied by a spate of extremely serious accidents which have come perilously close to also causing fatalities. Like the painter in O'Connor who fell four metres from the side of a house in September, or the 20-year-old apprentice electrician who, the week before that, suffered an electric shock at a Woden worksite and fell five metres from a ladder on to a concrete pavement.

Just on Thursday, a 28-year-old was electrocuted on a building site in Duntroon and a crane toppled over in Queanbeyan.

Jayson Bush, the 21-year-old construction worker who last month fell more than six metres down a ventilation shaft at the building site of the upmarket but accident-prone Nishi apartments in Civic, is still in a back brace, still wondering how he survived it. He is not certain he will ever be able to return to a construction site.

In July, the Nishi site was the scene of another major industrial accident when concrete was sprayed under pressure up to 30 metres on to the street below. Solid concrete pellets smashed a taxi, which thankfully had no one in it.

In a separate incident, a WorkSafe inspector in the middle of a compliance visit narrowly avoided being hit by a falling metal post.

Construction, Forestry, Mining and Energy Union ACT secretary Dean Hall says rarely a week goes by when a potential safety crisis isn't averted somewhere on a building site in Canberra.

Hall wants the inquiry recommen-dations to go hard - and for the government to act quickly.

''Right now the situation is out of control. A combination of events mean the construction industry has become self-regulated in safety. And that self-regulation has miserably failed.''

Hall cites a poor culture of train-ing and supervision, a lack of invest-ment in safety, and inappropriate training and licensing around dangerous equipment such as cranes. These problems are then exacerbated by a massive casualisation of the workforce and the move to independent contractors, including ''sham contracting'' where workers are passed off as independent contractors to bypass tax and compensation requirements and reduce labour costs.

The bottom line is getting the job done for the cheapest tender - in the quickest time.

''If you have a stable workforce on wages and conditions you are going to know these blokes, their kids, their footy team, and you are going to have an interest in training them and keeping them safe,'' says Hall.

''If it's someone you buy in for the job, you consider him as just a unit of labour and you don't care or invest as much in his safety.''

Hall likens working in construction to war - only construction is more dangerous.

''Seriously, in what other industry do you actually face a chance of death or disfigurement as part of the job?''

''In the last 10 years we have lost 39 Australian soldiers in Afghanistan, but in one year alone we have lost 34 Australians on worksites.''

Armed with a social work qualification, Hall is intimately aware of the impact of an industrial death or accident on the community.

He is the point of contact for bereaved families as they digest the news of a death or serious injury, go through coroners' investigations and workers compensation and insurance claims. He organises union benevolent funds to help pay for funerals, rehabilitation or the cost of raising children when dad is no longer around to earn a wage.

''We have a proud history of supporting families after a tragedy and sticking around for the long haul,'' Hall says.

''We are supporting Wayne Vickery's family, Ben Catanzariti's family and Jayson Bush. It has just been a terrible year.''

Hall also counsels the workers who remain on the building site when a body has been removed - reliving an accident over and over again.

''There are always repercussions once the big story falls off the front page of the newspaper. The workers sometime struggle to keep going, there are cases of post-traumatic stress.''

With Canberra's death rate one-third above the national average, Hall says anger and fear is building among the industry's estimated 15,000 workers, hundreds of whom took to the streets in April carrying coffins and signs emblazoned with ''Stop Killing Workers'' and ''Safety Before Profit''.

The union wants the inquiry to recommend a more tangible measure of work health and safety compliance, including considering developer and subcontractor safety histories during tendering, and removing the likelihood of financial penalties for companies that are prepared to invest time and money in ensuring the safety of workers.

It also wants more WorkSafe inspectors on the ground policing activity and for stop-work authority to be extended to union delegates in the event of a major safety breach - a proposal opposed by the Master Builders Association and McCabe.

Hall says many companies pay lip service to health and safety regulations, and the reality is that having a safety manual on hand is not the same as taking the time to make sure workers understand what is in it and how to apply it on the job.

The ''Tick and Flick'' mentality is also something identified by the Master Builders Association as undermining safety in the workforce.

For its part, the peak industry body, which represents 1240 developers and building businesses in the ACT, also pleads for a new approach to safety culture - one which is not underpinned by paperwork, but by communication between workers and their supervisors.

While the union antagonistically paints the association as being obsessed with profit over worker safety - the ACT's construction sector is predicted to earn more than $35 million in the coming decade - its deputy executive director, Jerry Howard, said there was deep shock and concern among building bosses about the deaths of workers. ''These have been terrible instances - and extremely unfortunate accidents - all subject to inquiry, which means I can't say a lot about them.''

After the second death, of Michael Booth, in March, the association was alarmed enough to invite the union to an industry roundtable to discuss safety.

''Of course we are concerned,'' Howard says. ''With five years of intense construction activity taking place in the ACT, things had been going well until this year.''

He says complacency in what has been a relatively safe industry is partly to blame, but he cautioned the government against thinking more regulation would improve outcomes.

''Cultural change is absolutely vital, and thinking you can solve all the risks by creating masses of paperwork will not actually get inside the heads of individuals.''

The association advocates a range of long-term cultural reforms aimed at getting supervisors out of their offices and on to work sites to do safety checks, demonstrate best practice and speak to workers directly to make sure they understand what is required - promoting so-called ''soft skills''.

''There is an absolute disconnect that writing safety plans and devising fancy management systems and checking that it has been sent out to workers actually impacts on behaviour. It just creates more paperwork,'' says Howard.

Indeed, while unions and industry bosses are at loggerheads on a number of industrial fronts, there seems to be tacit agreement that regulation may, in fact, detract from strong and simple safety messages.

The opposing sides also agree on another reform - the introduction of the ACT's first industrial magistrate.

Last month, in the thick of the local election campaign, ACT Labor pledged to establish an Industrial Magistrates Court and appoint specialist magistrates to handle the influx of industry cases.

Such appointments are likely to be backed by the inquiry, and the proposal is certainly welcomed by McCabe, who questions the deterrent value of the ACT's current regime of industrial health and safety fines when applied through an overburdened court system.

Not only do magistrates lack specialised knowledge of industrial case law, but there is a lag time of years between an accident hitting the headlines and a fine or conviction being handed down.

Severe new penalties came into effect this year under new national occupational health and safety harmonisation laws, which allow a company to be fined up to $3 million for a serious safety breach, and a negligent company director to be fined up to $600,000 or sent to jail for five years. But these penalties have yet to be tested due to the lag in cases reaching prosecution.

McCabe notes the largest fine this year was $15,000 for K-Form Structural Systems, responsible for the concrete slab collapse in 2008 at the Department of Education, Employment and Workplace Relations building in Marcus Clarke Street, Civic.

A $10,000 fine was handed to Delta after a wall collapsed at a Belconnen worksite, crushing several cars. No convictions were recorded against individuals in either case.

Investigations into all four recent deaths in the ACT are still being completed and it may be years before the cases reach the courts.

''A regular magistrate is snowed under with criminal cases,'' Hall says, ''and might get to an employer who hasn't erected safety rails on their building and think it doesn't really rate as a serious offence at all, much less a crime.''

The Master Builders Association believes an industrial magistrate would allow for the development of case law and precedents in the ACT.

''The introduction of an industrial magistrate would facilitate cases being heard in a relative quick time after the incident. At the moment the court systems are onerous and put unnecessary emotional and financial strain on victims of workplace accidents and their families,'' its submission to the inquiry said.

McCabe says any penalties handed down by a court need to be considered against the exorbitance of fines for developers who run over time on building contracts.

''We are talking about liquidated damages of tens of thousands of dollars per day on the big projects, so you have to wonder if the imposed fine for cutting a corner is likely to be so small, why wouldn't they risk it?''

In this respect, the ACT and Commonwealth - which commission 80 per cent of building work in the territory - could become model clients in promoting health and safety over deadlines and fines.

McCabe, whose entire career has been focused on workplace injury through his time managing workers' compensation at Comcare, and co-ordinating ACT public service health and safety, is confident the inquiry will get to the heart of the issues which have permanently marred the city's safety record and all but destroyed the lives of families whose sons and fathers have died at work.

McCabe is also a father, and says it is not acceptable for a parent to send someone off to work on a building site and not expect them home in one piece at the end of the day.