Campaign for industrial manslaughter laws hopes for accountability in workplace deaths in WA

Main Image: The families of these eight men are desperately trying to change industrial manslaughter laws after they all died while at work.

The West Australian

fr These are the faces eight families don’t want you to forget.

Loved ones who went to work and never returned.

From fallen on construction sites, drowning while pearl diving to crushed by machinery they all have one thing in common — they were young lives taken too soon.

Those left behind are pushing for lasting change and their fight for sweeping workplace reform became a step close to reality this week.

Members from Families Left Behind.
Members from Families Left Behind. Credit: Iain Gillespie/The West Australian

At the pointy end of debate over the Work Health and Safety Bill 2019, Upper House MPs have passed amendments that introduce industrial manslaughter.

For the first time, a jail penalty will apply for negligent employers who breach their duty of care which directly causes a death or serious harm to a worker.

This could see individuals face up to a five-year prison term and fines of $680,000 and up to $3.5m for body corporates.

An indictable offence of industrial manslaughter has been introduced imposing a 20 year prison term for offenders who dismiss their safety duty knowing that death could occur.

Members from Families Left Behind, WA families who have lost loved ones to workplace deaths.
Members from Families Left Behind, WA families who have lost loved ones to workplace deaths. Credit: Iain Gillespie/The West Australian

Fines of up to $5m could be in place for individuals and $10m for body corporations, which are significantly increases from $2.7m for a first offence, and from $625,000 to $3.5m for subsequent offence and a five-year prison term.

The threshold to be found guilty of this offence is higher because knowledge would have to be proved, which could likely come in the form of repeated non-compliance with prohibition notices issued by the regulator.

In the Australian Capital Territory industrial manslaughter has been in effect from 2004, Queensland in 2017, the Northern Territory in 2019 and Victoria in 2020.

Modernising of the reform nationally came after 2008 when Workers Relations Ministers’ Council developed a ‘model bill’ as a best approach to “harmonise” work health and safety.

It was the most significant reform to occupational health and safety laws since a foundation document known as The Robens Report in the 70s.

Developed in 1972, the report aimed to streamline health and safety in various jurisdictions by the Committee on Health and Safety to the House of Commons in the United Kingdom.

In January 2012, NSW, QLD, NT, ACT and the Commonwealth implemented the model bill, while Tasmania and SA followed the next January.

WA and Victoria were the only jurisdictions not to adopt the bill.

Analysis for the reasoning of both State’s came down to the implementation costs over the potential benefits.

While WA now holds some of the toughest penalties in the nation, the Bill has been watered down from initial proposals in the face of a string of resistance from opposing positions, including the Liberals who have argued the new penalties could “criminalise accidents”.

MP Nick Goiran.
MP Nick Goiran. Credit: Michael Wilson/The West Australian

Liberal’s South Metropolitan Region MP Nick Goiran urged the house to reject a provision that he claims would see employers punished for behaviour that is negligent, but not reckless.

His concerns have been backed by industry bodies, including the Chamber of Commerce and Industry WA who argue the Bill will prosecute employers for “accidents when it is no fault of their own” and Master Builders who claims the proposed laws are the most draconian in the country.

“Any workplace tragedy is too many, and it is unimaginable for affected families. That’s why the business community has always supported the cooperative policies that have made WA among the safest States in which to work,” CCIWA chief executive officer Chris Rodwell said.

York Farmer Tony Seabrook
York Farmer Tony Seabrook Credit: Mogens Johansen/The West Australian

“WA businesses support safer workplaces, not criminalising tragic accidents. Hundreds of WA businesses have contacted us to express their alarm about the Bill.

“Small businesses and farmers who have not been reckless, and have not been irresponsible in their actions, should not face criminal penalties when tragic accidents occur.”

Pastoralists and Graziers WA President Tony Seabrook echoed accusations by shadow industrial relations minister Peter Katsambanis that the State Government rushed through the Bill by ignoring stakeholder concerns and skipping consultation in several sectors.

“It’s a very strong act, even as it currently sits but what they’re proposing with the industrial manslaughter it really shows you a disconnect with how the real-world works,” Mr Seabrook told The West.

“At the end of the day, it doesn’t recognise that there is any such thing as an ‘accident’.

“They’re always going to go looking for someone to blame and they’re going to punish them as aggressively as they possibly can.

“It’s the wrong way. An employer should not look at an employee and regard them as a sovereign risk to their business.

“This legislation essentially creates a situation where, when there’s some sort of untoward event, a lifetime’s work can be lost, time can be spent in prison. This is not what employing people is supposed to be all about.”

Head of leading advocacy group Families Left Behind, Regan Ballantine said their was a profound difference in an “accident” and a failure of care in a workplace fatality.

Regan Ballentine, a mother fighting for change after her son Wesley died on a CBD worksite when he was 17.
Regan Ballentine, a mother fighting for change after her son Wesley died on a CBD worksite when he was 17. Credit: Daniel Wilkins/The West Australian

The Perth mother who lost her 17-year-old son Wesley, when he fell through a void in the roof of an internal atrium at the old GPO building in Forrest Place as it was being converted to an H&M clothing store in 2017.

Under direction of his employer Industrial Construction Services Pty Ltd the inexperienced teenager was installing a glass ceiling on thin beams with no harness and no anchor points or slack lines to facilitate one installed.

Wesley Ballantine, 17, died in a work accident at the Perth GPO, he fell more than 12m.
Wesley Ballantine, 17, died in a work accident at the Perth GPO, he fell more than 12m. Credit: unknown/facebook

Just days earlier he had told his mother he was surprised how risk-taking his workmates were and had showed friends photos he had taken on site of the beams and workers seeming mucking around.

Worksafe have charged four parties over his death the main contractor Valmont WA Pty Ltd, Wesley’s direct employer Industrial Construction Services Pty Ltd and the company’s director Adam Tony Forsyth and manager Luke Fraser Corderoy.

Valmont were fined $38,000 — almost one fifth of the current maximum penalty. The other proceedings are yet to conclude.

Ms Ballantine said she accepts that “catastrophic failures” occur in workplaces, despite precautions and the best intentions. It’s the absence of care that’s her biggest priority.

“We’ve reiterated over and over again that we do not support or advocate in any way that an accident warrants any type of prosecution. They don’t,” she said.

“We know that accidents happen and albeit extremely tragic, we have to accept that those things occur. That is not our fight. Our fight is about negligent acts that cause the loss of a loved one.”

Ms Ballantine labelled a potential of five-year jail term from nothing as a “victory” for her advocacy group.

“The families have won. Every West Australian worker and their families has won. And we have one against powerful and unscrupulous opponents — because in the end, the truth cuts through,” she said.

“The truth has power. And that truth is, people’s lives will be saved because of these laws.”

She said the “paradigm of valuing profits over and above workers” had to stop.

Luke Murrie's parents are pushing for new industrial manslaughter laws after their son died in a 2007 workplace accident.
Luke Murrie’s parents are pushing for new industrial manslaughter laws after their son died in a 2007 workplace accident. Credit: CGM Communications/Supplied

Mark and Janice Murrie’s world spiralled when son Luke, 22, died in October 2007 while working for hire company D&G Hoists and Cranes in Malaga.

He and another inexperienced worker were instructed to lift eight 375 kilograms sections of crane mast with a chain on each corner of the load rather than encapsulated.

The load slipped while in the air and, despite his efforts to run away, Luke was struck in the head.

“The way they were lifting with Luke was cheaper. He was killed because it was cheaper. His life wasn’t worth enough to them,” Ms Murrie said.

After a lengthy appeals process, his workplace was fined $90,000 and directors David Keating and Luigi Decesare fined $45,000 each, guilty of failing to maintain a safe site.

“That $90,000 – well the maximum was $500,000. I can’t get my head around that. That’s nothing,” Mr Murrie said.

Just two years later the company announced a combined annual turnover of about $80 million after the purchase of Eastern States entity Verticon Group’s Australian Crane and Hoist division for $12 million.

Janice Murrie.
Janice Murrie. Credit: Michael Wilson/WA News

“From our case – there was no justice. Nothing is going to bring Luke back,” Ms Murrie said.

“We sit in a jail every day of our lives. We’re in jail for the rest of our lives, we’ll never see Luke.

“Back when Luke was killed we felt that the penalties were pathetic. So the changes that have come through now – after 13 years – are a step in the right direction.”

The couple said while a five year maximum was a win, they expressed concerns offenders could be handed suspended sentences.

“You hear about the maximum but you never see it handed down,” Ms Murrie said.

DESMOND KELSH

Desmond Kelsh, 47, died while working for builder Sven Tobiassen in Myree in 2002.

Rigger Desmond Kelsh was killed in a building site accident in Myaree on September 18, 2002.
Rigger Desmond Kelsh was killed in a building site accident in Myaree on September 18, 2002.

He was working on a tilt up construction panel when the building gave way and her was crushed by concrete and steel from the collapse.

The developer and project manager were acquitted, while Mr Tobiassen was fined $35,000 but only six years after the death following an appeal.

JARROD HAMPTON

Jarrod Hampton, 22, drowned while working as a drift diver for Paspaley Pearling in April 2012.

Jarrod Hampton died while diving for pearls off Broome on his second day at work for Paspaley Pearls.
Jarrod Hampton died while diving for pearls off Broome on his second day at work for Paspaley Pearls. Credit: Unknown/Supplied

He has surfaced midway during the dive and alerted the boat he was in distress but it took 20 minutes to retrieve him from the water — with no rescue procedure in place.

Paspaley Pearling was fine $60,000 from a maximum of $200,000. The fine had been reduced 70 per cent on the basis that a Broome magistrate found the company to be a “good corporate citizen”.

CHRIS PATRICK

Chris Patrick, 27, had been living with his girlfriend Christiana Paterson and puppy Willow in northern WA while working as a surveyor at Karratha Airport.

Chris Patrick.
Chris Patrick. Credit: Sandra Jackson

Preparing land for a future car park, he sustained severe head and chest injury when a grader driver reversed over him, trapping him under the machine.

There were no penalties or criminal proceedings, with only a civil matter lodged this year by his girlfriend – six years after his death. The proceedings were settled out of court.

LEE BUZZARD

Diesel fitter Lee Buzzard, 32, was crushed to the chest by a centraliser arm on a Rio Tinto drill rig in June 2016.

Paraburdoo worker Lee Buzzard
Paraburdoo worker Lee Buzzard Credit: unknown/facebook

The uncontrollable movement of the arm had been reported five times but the machine was not shut down.

There has been no prosecution for his death and civil proceedings have commenced. The family claim the system is broken and his employer had been provided more access to information than the family in the years that have followed.

THE FIGHT FOR CHANGE:

The Work Health and Safety Bill now debated was brought about by The Greens’ North Metro region upper house MP Alison Xamon in 2010 and then reintroduced again in 2017 after she had met a mother and daughter of a worker who had died on site at a Mayday rally.

“Ten years ago when I was pushing for this there was not an appetite to have this discussion at all,” Ms Xamon said.

MP Alison Xamon introduced the industrial manslaughter bill in 2010 and then renewed her push when she was elected again in 2017.
MP Alison Xamon introduced the industrial manslaughter bill in 2010 and then renewed her push when she was elected again in 2017. Credit: Jackson Flindell/The Sunday Times

“When I got reelected into the 40th Parliament in 2017 I made a commitment to reintroduce that Bill and it WA the first thing that I did.”

Ms Xamon said she had been given undertakings that there was going to be reform around the Occupational, Health and Safety Act and “wanted to see what would happen” this time around.

“At that point there was still no commitment to introduce industrial manslaughter,” she said.

Alison Xamon.
Alison Xamon. Credit: Jackson Flindell/The Sunday Times

“Subsequently the unions came out and changed the Labor party policy and so they were obviously in a position where they had to look at introducing industrial manslaughter legislation.”

Ms Xamon accused Labor of “wanting to have two masters” for as long as possible.

“They want to be onboard with the union movement and they want to be on board with business,” she said.

She said the Bill wouldn’t be where it is today without the advocacy of the Families Left Behind.

“These families didn’t ask for this fight. This fight got forced upon them.”

“Yet, they have shown an extraordinary resilience and an extraordinary level of courage in making sure their stories are being heard. They are telling their stories over and over again and every time they do they relive the trauma.”

UnionsWA State Assistant Secretary Owen Whittle was announced on the 2017 Ministerial advisory panel for the bill to advise Industrial relations minister Bill Johnston and helped publish a report by the panel in 2018 that listed 44 recommendations regarding amendments to the model bill.

Speaking to The West Australian he said while some sections of the Bill didn’t make it, the progress was still a win for WA workers.

“There was a proposal to split the penalties between death and serious harm in the category one offence. It didn’t get up,” Mr Whittle said.

“It didn’t pass through and that was really disappointing because the way we look at it if you split those penalties in (category one) it would have actually made a real substantial difference to how the courts interpret penalties for both death and serious harm, instead it being a rolling penalties for both.

“But having…the main industrial manslaughter. It has a penalty, just for death (not serious harm) with a higher threshold.

“It’s a very significant victory in WA for both families and the union movement who have been part of the fight for decades.”

JASON GALE:

The issue came back into focus in July with the death of Jason Gale – the brother of WA supermodel Megan Gale – who witnessed the incident that killed workmate Robert Cunico at a Woodman Point water treatment plan on April 20, 2018.

Jason Gale.
Jason Gale. Credit: WA Police/WA Police

Among those calling for action on industrial manslaughter law was Mr Cunico’s daughter Ashlea.

Mr Cunico, a 60-year-old father of three and grandfather of five, was working as a supervisor for Civmec Construction and Engineering and was inspecting leaks when a burst pipe crushed him while suspended 10 metres in the air.

Jason Gale, a friend of 20 years, and another workmate had lifted the pipe off Mr Cunico.

The 49-year-old had struggled to cope with witnessing Mr Cunico’s horrific death but remained a “a pillar of strength” for Robert Cunico’s family.

Mr Gale’s body was found in bushland south-east of Perth on July 21 this year. Police have not treated his death as suspicious.

Alongside at least 200 mourners, including his famous sister who travelled from Melbourne, the Cunicos farewelled Mr Gale at a Fremantle Cemetery funeral last month.

Megan Gale has since spoken of the devastation at the loss of her brother Jason in July, admitting it was a “huge shock”.

Megan Gale has broken her silence on her brother Jason Gale's death in July. With tough border restriction rules amid the coronavirus pandemic, the Melbourne-based model, 45, revealed in an Instagram video on Monday that she knew she 'would regret not going' to his funeral held in Perth. Mr Gale, 49, was last seen at a petrol station on July 14 in Western Australia, and was found dead a week later in bushland next to his 1999 Honda CR-V SUV.
Megan Gale has broken her silence on her brother Jason Gale’s death in July. With tough border restriction rules amid the coronavirus pandemic, the Melbourne-based model, 45, revealed in an Instagram video on Monday that she knew she ‘would regret not going’ to his funeral held in Perth. Mr Gale, 49, was last seen at a petrol station on July 14 in Western Australia, and was found dead a week later in bushland next to his 1999 Honda CR-V SUV. Credit: Instagram

The grief-stricken supermodel broke her silence in a lengthy 12-minute video shared to Instagram. She spoke candidly about the gut-wrenching decision to leave her partner, former AFL star Shaun Hampson and their two children in Melbourne so she could attend the funeral in her hometown of Perth.

“I very sadly and unexpectedly lost my brother back in July, it was a huge shock,” Gale said.

“The only way I could get through it was to not think about what happened with my brother to block it out, pretend it hadn’t happened.

“Twice I broke about two minutes each time, but I just shifted focus … I couldn’t allow myself to grieve and sink into that deep sadness in there.”

Gale, who grew up in Kwinana, said travelling interstate during the COVID-19 pandemic presented itself with a number of issues but knew she would “regret” not attending the funeral.

“I had a very short period of time to make the decision,,” she said. “But I also wanted to be in Perth to support my mum and my brother and the rest of my family and play a part in sending my brother off and putting him to rest.”

PARLIAMENT/WHAT NOW:

The upper house is still locked in discussions on whether to strip the possibility of companies insuring against any potential fines that could occur from a workplace incident.

Regan Ballantine.
Regan Ballantine. Credit: Michael Wilson/The West Australian

Ms Ballantine said deterrents are necessary to end workplace deaths and being able to “insure your way out” was a “fundamentally flawed concept”.

One case where penalties and legal fees were paid out was by indemnity insurance and organised by Master Electricians in 2013.

On work experience in a hope to secure an apprenticeship, 18-year-old Jayden Zappelli was killed when he was electrocuted after directed to go into a roof space an pull a cable that had not been isolated.

The company JCW Electrical was charged and fine $38,000, while supervising electrician Dale Mortley was fined $6,800 from a maximum of $200,000. Insurance covered the fines.

Minister for Industrial Relations Bill Johnston urged opposition MPs and the crossbench to “do the right thing” and passed the legislation.

He said the department had recently introduced and appointed a new “family liaison officer” position in an attempt to remove further emotional toll for the vulnerable families navigating the legalities and processes of a workplace death — a concern raised by Ms Cunico who said she grappled with “systemic failures” following her father’s death.

“A family liaison officer (will work) as a point of contact to help and provide advice to those that are suffering from the tragic loss of a loved one or those with serious injuries in traumatic situations,” Mr Johnson said.

Advocates hope to the Bill will be enacted by the end of October.