Sunday, June 28, 2009

Industrial manslaughter: killers should be jailed.

Adelaide woman Andrea Madeley has called for the national adoption of industrial manslaughter laws.

This follows a $72,000 fine imposed by an Adelaide magistrate on local business Diemould Pty Ltd which had employed her teenage son Daniel until his death in their workplace on Saturday June 5, 2004.

Her call follows the state Labor government’s disgraceful attack on worker’s compensation laws last year, and the Federal Labor governments “lowest common denominator” approach to a standardised national set of worker’s compensation laws.

The teenager suffered fatal injuries when his dust coat became caught in the unguarded spinning shaft of one of the company's boring machines. He died the next day in the Flinders Medical Centre.

The boy suffered injuries to every part of his body – his brain bled severely, his spine was lacerated, his arms and legs were broken and both feet were severed – in the incident.

"I need to ask Daniel's employer these questions now,” said Andrea Madeley. “We're talking about a machine capable of tearing a human being apart - please tell me what the hell you were thinking having Daniel operating that thing alone in the factory in the middle of the night?

"It will be my life's work to hound the conscience of shoddy operations - companies that believe the bottom line is more important than the lives of their workers and their loved ones. That is the promise I made to Danny. I aim to keep it."

To keep her promise to her son, and to help the families of other victims of workplace death, Andrea established the organisation VOID (Victims Of Industrial Death) in May 2006. She is its foundation President, and maintains this website for the organisation. As recently as April 28, she addressed construction workers and others at a Victoria Square rally to commemorate workers killed on the job (below).

At the time of Daniel’s death, the maximum penalty for an employer convicted of safety breaches was $100,000. The maximum penalty for such breaches tripled to $300,000 in January 2008, three and a half years after Daniel's death.

Industrial Court Magistrate Richard Hardy said Diemould had failed to put a protective guard around the machine, failed to prevent access to it, and did not provide instruction, training or supervision for its use.

He also rebuked the company for not banning the wearing of loose fitting clothing near the machines.

(Above, Adelaide construction workers take on the ABCC which persecutes those who take a stand over safety issues - just see the Ark Tribe website for more info.)

However, despite describing Diemould as "glaringly culpable'' and saying that he found it "difficult to envisage a more aggravated offence'' of workplace safety regulations, Hardy only imposed a fine of $80,000, and then reduced that to $72,000 in recognition of the company’s guilty plea.

"This is a joke,” said Andrea Madeley. “We put people in jail for embezzling money, we put such a high priority on other issues but when it comes to the life and safety of workers, and almost all of us are working in some degree, we would like to think somebody has our back.''

She said the Industrial Court had delivered her the "final blow'' by not enforcing its maximum penalty of $100,000 on Diemould.

"I was so sure the Industrial Court understood the severity of this and I am sorry but $80,000 doesn't come close.

"If he is saying there are worse (safety breaches) out there then there should be a jail cell.

"You cannot just exploit these young lives and walk away with such a pitiful fine.''

(Perth construction workers take on Worksafe, a government agency which fails to secure work place safety.)

Madeley will now pursue the company for compensation in the civil court.

In a 2007 submission on the Workcover Corporation as President of VOID, Madeley had earlier described how “one of the most delicate issues that arises from this claims process is the overwhelming feeling of shame that comes with confronting the idea of compensation.”

“Financial matters are not an immediate priority, because the ability to focus on such matters is over shadowed by pain.

“By far the vast majority of the general public in this State would be unaware that in many cases, a death in the workplace can result in no compensation to family, even though the worker was clearly going about his work – and even though there is evidence of neglect where the death could have been avoided. It appears to not matter how little regard the employer had to OHS - the point is mute. The employer has no obligation to compensate irrespective of the seriousness of the neglect.”

Injured workers must have the common law right to sue employers for negligence.

The crime of industrial manslaughter must be introduced with a jail term and substantial fines as penalties.

No comments: