Paul Scarr (Queensland, Liberal Party) Share this | Hansard source

nator SCARR (—) (): I too rise to speak in favour of the amendments in the Work Health and Safety Amendment Bill 2022. I don't accept the characterisation from the previous speaker, Senator Green, in relation to the last government, but I'll quickly move on to deal with the substance of the issues here.

The way I want to address this is by talking about a particular case. When I was looking into this topic, I saw some commentary in relation to this case and I went back and read the case. Let me tell you the story of Brett Fritsch and why his story is extraordinarily relevant to the legislation which we're talking about today. During the construction of the Adelaide Desalination Plant on 16 July 2010, occupational health and safety offences were committed by a company called Ferro Con SA Pty Ltd and the relevant responsible officer for safety. They resulted in the death of 35-year-old rigger Brett Fritsch and a near miss for another rigger by the name of Craig Fowler.

The rigger's employer, Ferro Con, was using a large crane to install a 1.8-tonne, 14-metre-long steel monorail beam to the rafters of a partially built building. The lifting of the beam had been poorly planned by others. No risk assessment or job safety analysis had been undertaken for this type of lift, and no safe working procedure had been devised to take account of the particular hazards of the task.

As a result, Mr Fritsch was required to pull down heavily on a tag line in an attempt to lower the tilted beam's high end to a level position so it could then be bolted to a rafter. This required Mr Fritsch to stand under the 1.8-tonne beam—just think about that—to exert the required force, contrary to a general instruction to not stand under a load. While Mr Fritsch was trying do this the fabric sling supporting the beam snapped, resulting in the end of the beam dropping directly onto his head. He was instantly rendered unconscious and died soon after.

The other rigger, Craig Fowler, was standing on an elevated work platform at the time. His machine was struck by the falling beam, but he was able to ride the fall until he could jump clear onto nearby scaffolding. That is the case of Mr Brett Fritsch.

I want to read to you excerpts of the statement that Brett's mother gave to the South Australian Industrial Relations Court. When we're debating or considering provisions such as this, I think we should reflect on the individuals who are impacted by these events. These changes aren't just words on a page. They have material impacts for everyday Australians' loved ones who are doing their work duties and suffer harm. This is what Brett's mother said:

This is my victim impact statement, but I am not the victim here. Brett, my beautiful boy, is the real victim.

…    …    …

Brett has been robbed of his life, of being a devoted and loving hubby and daddy when he was so happy and in the prime of his life. You have changed the natural order of life for me—a mother should never outlive her child …

She went on to talk about her grandson and the impact of this tragedy on him:

Watching Brett's little one grieve and struggle with questions about death that a now four-year-old should never have to deal with is utterly heart-wrenching. He periodically asks me about his daddy. He asked me last year, 'My daddy is lost. Where is he lost to, nanna' and he has cried and got angry and frustrated because he can't possibly understand or find in his vocab the words to explain his feelings and queries.

Finally, Brett's mother said directly to the magistrate hearing the case:

Your Honour, I need for something very positive to come out of all of this. Please don't allow my Brett to have died in vain. You have the authority to send out a message loud and clear to construction companies that workplace deaths and serious injuries will not be tolerated by the courts.

I can't imagine what it's like to be in that position. I can try to understand, but I can't fathom what it must be like to lose your son and then have to face dealing with a grieving family whilst also dealing with a mother's grief. I think it is fit and proper that we consider those words as we consider this legislation and also consider that this legislation will have an impact on everyday Australians. Senator Green referred to those who are killed at work and those who suffer serious injury. These are not just words on a page. This is dealing with everyday Australians.

In this case, the industrial magistrate identified no less than four failings of the company involved, Ferro Con. I'll go through them. First:

Ferro Con knew decisions may have to be made during the course of each lift, but left all safety considerations of the job up to the supervisor and workers to, at best, be identified, discussed, agreed upon and implemented on an ad hoc basis.

Second:

The second major failing of Ferro Con was to not ensure that a site and task specific workplace procedure was developed for lifting this particular beam on 16 July.

Third:

Ferro Con's third failing was in not prohibiting the installation of the beam unless sufficient space was available on the ground inside the building in which to lower the beam for the purpose of re-rigging.

And fourth:

Ferro Con's fourth failing was to not ensure that the lift complied with its own general job safety analysis for structural steel erection, and in particular a written requirement that riggers were not to stand under a load.

These are clearly acts of negligence and omissions which would fall within the definition of negligence as is introduced by this bill. It should be recognised that, in relation to the standard of proof that is required in this regard, there is reference to the Commonwealth Criminal Code definition of negligence, which is:

A person is negligent with respect to a physical element of an offence if his or her conduct involves … such a great falling short of the standard of care that a reasonable person would exercise in the circumstances … that the conduct merits criminal punishment for the offence.

That is the standard, and that is the standard which every single employer in this country should meet. Every single employer should be meeting those standards, and if they aren't there needs to be consequences, because there are consequences for people such as Brett and his family. We need to take that carefully into account. I say that as someone who comes from the mining industry. For 12 years I worked in the mining industry, and before that I was involved in a number of investigations into fatalities and serious injuries on mine sites. The memories of the consequences of those fatalities, for the individual workers concerned and for their workmates and their families, have stayed with me.

Lastly, I want to deal with a point, which again came up in Brett's case, in relation to this issue of general indemnities. I quote from the case:

Ferro Con had in place a general insurance policy which apparently included indemnification of its Director for fines imposed for his criminal conduct …

In this case, the director—the responsible officer of this company—had an insurance policy which provided an indemnity with respect to any penalties he received. The magistrate continues:

The insurance cover carries a $10,000 excess or deductable payment. As Ferro Con is in liquidation and has no assets with which to pay the excess—

Because the company went into liquidation after this, there was no recourse against the company—

Mr Maione has paid it personally.

The responsible officer paid the excess personally to get the benefit of the insurance policy.

The magistrate continues:

He may not even bear the full cost of this if claimed as a tax deduction. By his payment he has ensured the insurance company grants both Ferro Con, and more importantly him, the indemnity he sought. In this way Mr Maione has made arrangements to avoid the vast bulk of the anticipated monetary penalty.

In my opinion Mr Maione's actions have also undermined the Court's sentencing powers by negating the principles of both specific and general deterrence. The message his actions send to employers and Responsible Officers is that with insurance cover for criminal penalties for OHS offences there is little need to fear the consequences of very serious offending, even if an offence has fatal consequences.

That is the issue that this legislation fixes. It should not be the case that a responsible officer who has been grossly negligent is able to get an indemnity through insurance against the penalty which is imposed after going through the appropriate legal process against the consequences of him or her breaking the law. It should not be the case that someone should be indemnified through insurance so that they don't have to take the real financial consequences, which cannot in any way compensate or be an appropriate indication of the loss suffered, in this case by Brett's family, the loss of that young life. It should not be the case that a responsible officer should be able to get indemnity insurance to cover that cost.

I see Senator Roberts has just arrived. I know Senator Roberts held very responsible positions in the mining industry as a site officer and had responsibility for safety. I'm sure Senator Roberts would agree with me that the No. 1 obligation upon people holding those positions of responsibility is to make sure all of their workers, after they spend a day at work, get home safe and sound to their loving families. That is the No. 1 responsibility, the primary responsibility. It is wrong that in a case such as this, in terms of the death of Mr Brett Fritsch, the responsible officer should have been able to avoid responsibility, the cost, of meeting the criminal penalty that was incurred by him, because he did not discharge his responsibilities as a responsible officer.

I want to say, for the record, that this is a case where the Senate is looking to close this loophole. It is about more than just words on a page. This is about people who have suffered great loss in their families, and the human element of this must always be remembered and always be considered. I hope Brett Fritsch's mother somewhere, somehow, knows that this place is now rectifying this situation where the responsible officer, who had responsibility for keeping her son safe and sound, managed to avoid liability to meet the penalties that were justly imposed against him.