Address to Union Members and Delegates at Panthers
The 15th of October of this year marked the anniversary of the death of Joel Exner. Joel’s family along with many of his school friends and over 400 construction workers attended the unveiling of a memorial in his honour at Wallgrove in Sydney on this day. Workers at Joel’s former employer, Australand, walked off the job for 24 hours as a mark of respect. Workers from the nearby M7 project joined them.
The memorial features a plaque of Joel and a resting place for passers by. The memorial will cause us all to remember the tragedy of his death. Joel’s memorial also represents a telling symbol of the need to correct the injustice of his unnecessary death. As many of us know, Joel was tragically killed in a workplace accident. He fell several metres through a roof at the Australand Holdings Ltd Site, Eastern Creek. Joel’s employer provided no safety harness for him or his workmates. It was Joel’s third day as an apprentice roofer. He was only 16 years of age.
Unfortunately, Joel’s death has not been a “one-off” incident. His story is but one of many tragic deaths that have occurred in the workplace due to the negligence of employers. In fact, Anthony Hampson, who worked for the same employer as Joel Exner and fell off a roof prior to Joel’s death said:
“If WorkCover NSW had immediately investigated my accident Joel Exner may still be alive. The fall of Joel was a ‘copycat’ accident of what happened to me. I also had no safety harness or scaffold protection.”
Four years ago, Dean McGoldrick was also killed in a similar accident. Dean McGoldrick was killed on 1 February 2000 when he fell from the top of a 12 metre high building at a building site in George St in Sydney. Dean was on his 11th day of work as an apprentice roofer and he was 17 at the time of his death. In fact, on the 13th November 2003, I asked the Hon Minister John Della Bosca the following question without notice concerning the death of Dean McGoldrick:
“Is the Minister aware that the employer of Tamworth boy Dean McGoldrick, who was killed in an industrial fall while working for Advanced Roofing on a work site at Broadway was fined just $20,000 by the Industrial Relations Court? Is he further aware that Advanced Roofing, which is owned by Tamworth resident John Peter Poleviak, has paid only $1,800 of the $20,000 fine ordered by the court? Will the Minister explain why only the company was prosecuted, rather than the individual company directors, a decision that effectively allows business owners to liquidate and start over under a new name, thus avoiding the fine altogether? Does the Minister believe that justice was served by such a low fine in the first place? What action will he take to ensure that the full fine levied is paid by the employer in order to begin the healing process for the family of Dean McGoldrick?”
The Minister responded to my question, saying that the company was convicted and fined $20,000 on 25 May 2001. The director was also convicted but no penalty was imposed provided the initial fine was paid. The company failed to pay the fine and the Local Court directed Mr Poleviak to pay the remainder of the fine personally.
This one case highlights the obvious absence of an appropriate sanction for the negligence of an employer to its employees. It is also representative of the void of appropriate accountability and responsibility that many employers should be subject to.
On 19 November 2003, General Purpose Standing Committee No. 1 was asked to inquire into and report on serious injury and death in the workplace. The terms of reference given to the Committee canvassed a myriad of compelling issues principally centred around WorkCover practices relating to serious injuries and deaths in the workplace environment. However, one of the most poignant points given to the Committee to examine was the operation of WorkCover’s prosecution branch with respect to the death of Mr Dean McGoldrick. In addition, during the hearing held on 16 February 2004, the Committee also received a petition tabled by Ms Kim Williams, a friend of Joel Exner, containing 4,000 signatures calling for an offence of industrial manslaughter to be established.
The Committee Report was handed down on 6 May 2004. The Committee members[1] and in particular, Revd the Hon Fred Nile MLC who chaired the Committee, are to be commended for this report. The report has addressed, in a clear and methodical manner, issues and concerns of utmost importance in different workplace arenas surrounding serious injury and death in the workplace. In relation to calls for an industrial manslaughter law, the Committee made two pertinent recommendations. Recommendation 26 reads:
“That as a matter of urgency, discrete and specific offences of “corporate manslaughter” and “gross negligence by a corporation causing serious injury” be enacted in the Crimes Act 1900.”
Recommendation 27 reads:
“That the Government refer to the NSW Law Reform Commission and the Panel of Review a request to examine the broader issues of corporate liability for non-workplace workplace deaths generally, including harsher penalties.”
The Parliamentary Committee in fact supports the introduction of industrial manslaughter laws.
One of the main advocates for industrial manslaughter laws has been the Construction Forestry Mining Energy Union (CFMEU). Andrew Ferguson, CFMEU NSW State Secretary in a recent editorial published on the CFMEU’s website has said the following on this issue:
“For a long time the CFMEU has been calling for the introduction of tough industrial manslaughter laws. We believe that bosses who are responsible for killing their workers because of negligence should face massive fines — and in special cases, the prospect of a jail sentence …
After listening to all the arguments, the Inquiry backed our call for industrial manslaughter laws. Apart from two liberal party members, the other members of the committee voted overwhelmingly to back the union position …The highest profile death in NSW recently was the tragic death of 16-year-old Joel Exner in October last year … Joel’s mother, Sue Baxter, has become a strong supporter of our campaign for tougher laws …
However, Joel is not the only worker to die at the workplace. Every week there is some terrible tale of a worker who does not come home. Until bosses face jail, they will continue to take the shortcuts and avoid their safety responsibilities — the consequences for us, the workers, are deadly…”
I wholeheartedly agree with CFMEU’s position and the recommendation made by the Committee on this issue.
Sue Baxter, Joel’s mother, has pleaded with the Government saying:
“One year on, we still haven’t received justice for Joel, and the government still hasn’t learnt anything from our pain and suffering … “If a driver is negligent and kills someone, that’s a crime, but for some reason they are still refusing to create industrial manslaughter laws so that bosses who are negligent, and kill innocent workers like my son, can be jailed for it.”
THIS IS GORDON MOYES.
[1] The Committee was comprised of: Revd the Hon Fred Nile MLC – Chair (CDP); Hon Peter Primrose MLC – Deputy Chair (ALP); Hon Kayee Griffin MLC (ALP); Ms Jan Burnswoods MLC (ALP); Hon Catherine Cusack MLC (LP); Hon David Clarke MLC (LP); Ms Lee Rhiannon (Greens). Participating members were: Hon Tony Burke MLC (ALP); Hon Amanda Fazio MLC (ALP) and the Hon Ian West MLC (ALP).
