20 October 2006

Tony Maher speaks to the IR Society of Victoria about the disaster at the Gretley Colliery nearly 10 years ago and considers the future of work safety.


"The future is not what it used to be"

Work Safety

Congratulations on the title of your conference – “The future is not what it used to be”. One of the great self fulfilling prophecies. It also invites us to consider what should the future hold in the important area of work safety. I will do that but first I want to address a matter that is very current.

The IPA Report

Last week the Institute of Public Affairs released, with much fanfare and a youtube video, a report entitled The Politics of a Tragedy – The Gretley Mine Disaster and the dangerous state of work safety laws in New South Wales.

It’s an 18 page document styled a report, but more accurately described as the rant of a conspiracy theorist.

The report is disturbing. It deals in an intellectually dishonest way with the mining disaster at the Gretley Colliery which occurred almost ten years ago, when 4 mine workers drowned in the most horrific of circumstances in an underground mine not far from Newcastle. The men died while operating a piece of mining equipment known as a continuous miner. The machine was digging underground when it holed into disused mine workings. The old workings were full of water and the accumulated water rushed into the mine with great force and washed the men to their deaths.

The disaster was the subject of a lengthy Judicial Inquiry following which some 52 charges were laid under the Occupational Health and Safety Act of New South Wales. 32 of those charges were successful. The companies  that owned the mine, two managers and the mine surveyor were found guilty of breaching the OHS Act.

If anyone is interested in knowing what happened at Gretley, I commend to you the Report of the Judicial Inquiry. It is a comprehensive account of the incident and a document that has formed the basis of a wide ranging review of safety laws in the NSW Mining Industry.

I should declare an interest here as the IPA report does attack my union. It says we influenced the prosecutorial decision making process and that’s why the labour hire company which the union part-owned (not an unusual situation), was not prosecuted. I simply say that we did not. The suggestion is ludicrous.

But then many of the suggestions in the report are ludicrous.

That Report  is disturbing because it:

•  omits significant facts in dealing with the disaster;
•  is incorrect in its description of the laws;
•  is inconsistent in its reasoning; and
•  is hyperbolic in its commentary.

It has all the hallmarks of a rant.

Factual errors

Let me deal first with some factual errors.

The Gretley disaster occurred because the mining company that was extracting coal from the Gretley colliery knew that they were mining near old workings but they did not know where those workings were. They thought they knew, but they didn’t.

Everyone in the industry knows the dangers associated with old workings and the likelihood that they will be full of water. It is a known danger.

The maps used were out by about 100 metres. The Gretley Inquiry found that a mistake was made when the Department of Mines transferred information from an old plan known as sheet 1 to two other plans known as sheets 2 and 3. They were known as this because on the incorrect maps were the notes sheet 2 of 3, and sheet 3 of 3.

The management of the mine were given and relied on sheets 2 and 3 but, it seems, never bothered to look at sheet 1.

The Inquiry found that the mine owners should have had a look at sheet 1 before they started mining in the area.

The IPA report talks about the maps but neglects to tell the reader that the Inquiry, and the Court which subsequently convicted the company, heard expert evidence that the mine’s surveyors should have been aware that sheet 2 and 3 were not the original maps and had they looked at them carefully they could have found the errors and alerted all concerned.

The Gretley Inquiry also found that reports made by workers in the weeks before the disaster of excessive water in the mine should have been taken more seriously.

In another sleight of hand the IPA Report calls the mine a wet mine, trying to suggest that there was water everywhere before the disaster, but the Inquiry found that the workings that were being done were dry because at that point they had been mining uphill. The water complaints should have raised an alarm with the company.

The Report in a real doozy repeats on a number of occasions that the NSW Govt failed to state publicly why it did not prosecute the Department of Mines over supplying the inaccurate maps. Now I was sure that this issue was well ventilated at the time the decision was made, and, I must say, I was sure of that because my union agitated along with the families for the Department to be prosecuted.

The question made its way to parliament and a question was asked of the Attorney General in parliament. The Attorney General said, in that most public of forums, that there were conflicting legal advices from two eminent QCs. He then told parliament that he would refer it to the DPP for advice. As I recall it the DPP provided an advice that the Department couldn’t be prosecuted.

I was sure of this but I asked a researcher in my office to look it up. Fifteen minutes later I had copies of the relevant questions and answers in Parliament in 2000. Now I know this IPA bloke doesn’t like the NSW Government but he shouldn’t let that get in the way of a visit to the Parliamentary web page and doing a search for Hansard that mentions Gretley.

The IPA report states proudly that it is the result of two years research. Pity the researcher didn’t take 15 minutes in that time to do that search.

Incorrect description of the law

The IPA is also incorrect on the law. The report complains that the circumstances show that under the NSW laws the company was denied natural justice. This is just bizarre. I understand that natural justice requires that parties be heard. There was an 18 month Inquiry where the company was represented by a QC. There was a 9 month prosecution where the company was represented by another QC. The managers were represented by a third QC. There were months and months of hearing days. There were two law firms involved. I imagine the company lawyers did very well out of the exercise. If natural justice can be measured by the size of your legal bills I reckon these people could be said to have been afforded natural justice measured in millions.

The IPA report says that there is a presumption of guilt. That’s wrong. I think he means to say that the offences are strict liability offences. But then so are offences under the Corporations Act. Why should safety laws be different?

In the report the author sets out s8 of the OHS Act of 2000 to illustrate the unfairness of the Gretley prosecutions. But the Gretley prosecutions were brought under sections 15, 16 and 52 of the 1983 Act. The first of these is in similar terms to the later Act. But no mention of s16 or s52. And no mention of the defences available under the Act either.

The IPA report also complains that OHS prosecuting authorities could be biased because they get half of the fine. Well, as far as I know most court penalties are paid to the State and what do you know the DPP is a state authority.  I’m not sure what this bloke thinks we should do about that.

Inconsistent Reasoning

This report is riddled with inconsistent reasoning.

So far as it can be said that there is a thesis here, the thesis of the report seems to be this. The Company should not have born the brunt of the prosecutions at Gretley. The Department should have been prosecuted too and the Labour hire company which employed 3 of the men. In other words there should have been more prosecutions.

From there it goes on to argue that there are too many prosecutions. And because there are so many prosecutions safety suffers. So the laws are wrong and there should fewer prosecutions because employers will not feel under threat and will get to the job of making workplaces safe.

The inconsistencies are glaringly obvious.

Hyperbolic Commentary

It is the hyperbole in the Report that gives it away as little more than a conspiracy theory rant.

Consider just this one comment:

"Industrial relations institutions such as the IRC have embedded within them a mindset that considers workplace warfare along class lines to be a reality.  This is the environment of industrial relations disputes."

Not an attitude that the IR Society of Victoria would endorse I’m sure.

I’m thinking unfair dismissal cases, claims for allowances, wage cases, disputes about reasonable overtime. I know these things still happen in the NSWIRC – not de rigueur in these WorkChoices days - but a long way from the glorious revolution.

I didn’t want to take up too much time on this report but I felt it relevant to today’s topic. This report is typical of a hard edge that is finding its way into the debate about Safety laws. It is an edge that seems to me to be defending the indefensible.

It complains that employers are being prosecuted when workplace deaths and injuries occur. It’s been around for a little while now, this dark complaint. I think, hope and pray that it will go away.

You see there should be no sympathy for that line. Quite simply employers should be prosecuted if they have failed to ensure that their workplaces are safe. No, ifs, buts or maybes.

Current OHS regulation

Every state and territory has its own occupational health and safety legislation and major mining states have their own mine safety legislation. That legislation is based on the UK Robens model but varies in detail and effect.  Anyone familiar with the Robens model knows that the pinnacle of an effective OHS regulatory system must involve stringent enforcement. There are, however, differing approaches to enforcement in the various Australian jurisdictions.

Mining regulation is a good example of differing approaches between the states. In Queensland there is a stand-alone Mine Safety Act. In New South Wales the OHS Act is an umbrella for all industries and mine safety has a complementary or supplementary piece of legislation. In WA there is a separate Mine Safety Act, which mirrors in its relevant parts the OHS Act, and in Victoria and Tasmania there is a single OHS Act, which also regulates mine safety.

There are significant variations in the degree of prescriptive regulations and safety management systems.

The administration of OH&S legislation varies from state to state. Again mine safety is a classic example of inconsistency where it’s administered in New South Wales, Queensland, WA, Victoria and South Australia by a separate mines department but not in Tasmania or the Northern Territory. 

Likewise the enforcement policies vary significantly from state to state. While the IPA obsesses about the frequency of prosecutions and convictions in New South Wales, I prefer to question the lack of enforcement of safety standards in other states.

Is NSW the problem?

New South Wales is said to be out of step with other states in the use the concept of strict liability and the use of the Industrial Relations Commission in court session.

A few points about that. As I said the concept of strict liability applies the Corporations Law, it also applies to Road and Traffic law, in Environmental Protection law and there is no reason why it should not operate in Safety law.

Strict liability is important for corporate offences. How else can prosecutors find the element of mens rea or guilty mind? Corporations don’t have a corporate mind. I might even say that they are mindless.

There are also defences available concerning whether it was reasonably practicable to comply with the Act or whether the situation was beyond the control of the employer and in a number of cases such defences have been successful. 

In terms of Industrial Relations Court of NSW, it is a specialist court of which there are many other examples such as Children’s court, Land and Environment court, Family court and the like.

Mind you I think it is impossible to examine the current regulatory framework without reaching the conclusion that it is indeed a dogs breakfast.

However it’s not NSW but the other jurisdictions who are letting safety down by having weak enforcement mechanisms. 

I don’t think the answer is to reduce everything to the lowest common denominator. Australian workers deserve better than that.

Crystal Ball

Occupational Health and Safety or work safety as you have described it is a microcosm of the problems faced by federations of states in the politically charged atmosphere created by having a federal conservative government and state and territory labor governments.

However in my opinion the future will continue to involve a sharp debate. A debate where occupational health and safety is heavily politicised rather than a debate about the development of the safest workplaces possible.

Everybody likes to put their hand on their heart and say that occupational health and safety should be above politics, above reproach. Nothing could be further from the truth. For many employers, most notably mining companies, it is all about taking whatever course of action is necessary to get their own way.

I have no doubt at all that the health and safety regulation of ‘corporations’ could be provided by commonwealth legislation.  The only reason it hasn’t been openly advanced is that it’s too hot to touch. It’s called political reality.  The federal government is on the ropes trying to justify its industrial legislation. Imagine the campaign we could run if they proposed a hostile commonwealth takeover of occupational health and safety laws. I’d love to see it!

Nevertheless this little pearler of an idea keeps bobbing its head up. If you look at the submission of the Minerals Council of Australia to the taskforce on the regulatory burden on business you will find a demand for national OHS legislation as a key feature. Given its place in a report detailing the need to reduce a variety of regulatory burdens on business it is safe to assume that such national legislation would be of the lowest common denominator variety. The idea even got some airing at meetings of workplace relations’ Ministers and was briefly propounded by Kevin Andrews. Before that notion got any real public attention the hard heads within the coalition pulled it off the agenda. For the time being.

Constitutionally they could achieve watered down safety legislation, national safety legislation, but it’s too politically controversial. It would destroy Howard’s chances of re-election. Nevertheless if re-elected it becomes an option again.

The sharp end of the debate is of course in New South Wales where on the one hand the mining companies participate in tripartite forums charged with the responsibility of reforming mine safety.  At the same time they campaign to drastically reduce their obligations under state law. The real problem with this strategy is Peter Debnam. He is unelectable.

Any sober analysis must reach the conclusion that the existing regulatory framework is complex and cumbersome and inconsistent. The only prospect of regulatory reform of the nation’s mine safety laws is the national Mine Safety Framework. It is a case of the state regulators in conjunction with stakeholders developing a strategy for each key area of health and safety policy.

The Chief Inspectors of Mines took matters into their own hands and began work on a National Mine Safety Framework. That has now broadened into a tripartite forum where the various state and territory regulators are developing seven strategies essential to improving the consistency and effectiveness of state and territory legislation.

They are:

1. Consistency in legislative frameworks
2. Competency development
3. Compliance support
4. Enforcement
5. Data collection
6. Consultation
7. Research

This option appears to have the greatest prospect of success.

In conclusion my fearless prediction is that the dog’s breakfast will slowly come to resemble something a little bit more orderly through cooperation by state governments, while the mining companies will continue to agitate their political connections and use their cash for comment think tanks.