Sunday, March 16, 2008

Workers Compo Cuts: Serial Killers

Noted progressive historian and academic, Humphrey McQueen, has written on the Rann Government's proposed cuts to injured workers' entitlements. His contribution follows:

South Australia is the latest Australian Labor Party administration to cut compensation payments.

An Adelaide academic advised the Rann regime that reducing benefits was the only way to save the State’s WorkCover from bankruptcy.

What’s wrong with eliminating the injuries on which compensation is paid? That alternative is obvious to anyone concerned with the health of workers rather than with protecting profits. The untried method for achieving that end is to prosecute all employers whose workers suffer injuries for which they are compensated. Gillard can retain the Australian Building and Construction Commission as the industrial Stasi but turn its police-state powers against the bosses for their culture of crime.

Too little has changed since the 1820s when the British government rejected criminalising workplace deaths because such a provision “would create a serious objection to the investment of capital,” as the attorney-general put it.

Since the 1980s, OHS Acts have required employers to provide safe workplaces, but only “as far as practicable”. The Victorian Act defined “practicable” as having regard to matters such as the severity of the hazard or risk, the state of knowledge available at the time, the methods available of reducing the hazard and the cost of doing so.

In practice, “practicable” subordinates health and safety to the bringing of projects in on time and within budget. “Practicable” spells “still profitable”.

Today, far fewer than one percent of compensated injuries lead to prosecutions, let alone convictions. In 2007, NSW WorkCover announced that its 200 prosecutions a year out of the 150,000 compensated injuries were too many. Even where a worker has been killed and the boss pleads guilty, a conviction is not always recorded.

The death in October 2000 of a Leightons’ worker led to fines of $325,000. Executives were offered rehabilitation to become good corporate citizens. Leightons was not excluded from government contracts, which was the fate of any firm prepared to deal with the BLF after its de-recognition in 1986. Leightons did have to pay $90,000 to the children of the dead worker. That sum was one four-hundreth (0.25%) of the $36m. package taken home by the corporation’s CEO, Wal King. In an era when executives vote each other performance bonuses, they can afford to pay penalties as crippling as the harms that profit-taking inflicts on workers. What might be the deterrent effect of seven years hard labour on a few CEOs?

Bourgeois law treats OHS violations as “not really crimes”. A real crime requires evil intent. Bosses testify that they did not employ workers to injury them. No, the intent is to profit from their labour power.

In practice, workers deal with regiments of employers who intentionally break several laws. OHS negligence is bound up with financial misdeeds. The business “plan” will combine theft with speed-ups and skimping. However, when a worker is injured on-site, the legal status of that harm is not affected by these other offences.

The class bias of bourgeois jurisprudence is confirmed by its failure to treat OHS offences in the same way as felonies or misdemeanours for which the prosecution is relieved of the need to establish evil intent. For instance, if snatching a hand-bag results in breaking the victim’s arm, the law looks upon that injury as if it had resulted from a deliberate assault. The evil mind essential to establish criminality carries over from the intended theft to its consequence as bodily harm. The behaviour of Messrs Construction Capital provides prosecutors with all the evidence they need to link OHS offences to “real crimes”.

In the building game, an employer who is not a real criminal is hard to find. Thieving from workers happens on the hour. In the 1880s, Master Builders pocketed the penny a day that labourers paid for insurance. In 2007, the actor in a Government TV commercial for WorkChoices had run a painting business where he ripped off his teenage brush-hands.
The non-payment of Superannuation contributions by employers was so rampant in 2007 that the Australian Tax Office (ATO) operated a task force to track down thieving bosses. After the ATO retrieved $93m from 234 offenders, the Deputy-Commissioner confessed that those cases were “only a small part” of the defaulters.

The charge sheet against employers does not stop at underpaying their workers or avoiding tax. Messrs Construction Capital prosper on collusive tendering and price-fixing. They also gain from their despoliation of the natural, built and cultivated environments.

The il-logic of the expansion of capital compels even the kindest employer to impel workers take risks. Once capitalists allow conscience to be their guide more than their PR releases, they risk being driven out of business. Even conglomerates do not operate in circumstances chosen by their ethics consultant.

In 2003, Royal Comissioner Cole acknowledged “the effect that the fiercely competitive nature of the industry” had in undermining health and safety. From his discussions with industry participants, he knew that employers operate on very small profit margins. This originates at the top level, where head contractors tender on the basis of small profit margins or, often, at cost … As a result, for a head contractor to ensure profit at the end of a project, considerable pressure is often applied by the head contractor with the aim of reducing the costing provided by tendering sub-contractors. The same process is then replicated down the chain of sub-sub-contractors.
Cole saw that cutting back on health and safety was a way for employers to squeeze in under the tender price. His response was to criminalise union activists against OHS violations.

The provision of safe and healthy workplaces is the kind of improvement favoured by reformers. Yet, wads of legislation over 200 years have not stopped harms to building workers from staying at more than twice the level for the whole labour force.. The failure to make construction sites safe shows how much more than workplace practices will have to be overturned. Qualitative advances will be possible only by interfering with the rights of capital to expand.

Worker control over safety is the proven path to ensuring that fewer labourers are put at risk for the sake of profit. From the 1960s, BLF militants tamed the concrete jungle by insisting on “no helmet, no start” and effective precautions for removing asbestos.

Although the rate of harm remains high after 200 years of battling for health and safety, how much more deadly would Mesrs Construction Capital have been if left to their own devices?

Hope resides in recognising how many injuries have been prevented by the willingness of workers to break the laws against their organisng their self-defence as defiance of a legal system where assault is not a crime when done for profit.

Humphrey McQueen has written A framework of flesh, builders’ labourers battle for health and safety.

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