Debate on IR policy – depaNews August 2007
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New depths plumbed in unsophisticated debate on industrial relations policy
As the election gets closer, debate on industrial relations policy taps new depths. How else do you explain the Government’s fascination with the hoary old concept of "union bosses"? Sydney Morning Herald cartoonist Moir got it right in the cartoon that leads this Bulletin.
Whether the Government is tapping into recent market research or polling in the community showing an increasing mistrust and anxiety about trade unions and those elected to lead them, or whether this is simply their politics and hatred showing, there is a simple truism discovered when market researchers ask people about unions. And it is this:
While union members might be sceptical about the way other unions behave, and the way officials of other unions might be perceived, they never really feel like that about their own union. People have a different connection with their union to other peoples’ unions. That's why you find a specific attachment that is not reflected as a general view to all unions. It's also hard to look at the charming, benign and pleasant members of depa’s Committee of Management in the context of the Howard Government’s demonising of thuggish and boorish union bosses. Cripes, everyone’s elected and elected officials reflect the membership - just like in other unions.
And while union coverage has been declining over the last decade or so (although there has been a resurgence accompanying the anxiety about Workchoices) in industries like local government and the public sector, there has been no decline.
We make no apologies for supporting a system that allows us to negotiate a new Local Government (State) Award every few years or so. We did that with the other unions in the industry in negotiation with the employers represented by the Local Government Association and Shires Association. The system that allowed us to do that also allowed us to manage industrial disputes and minimise industrial action. It's hard to find anything wrong with that and it has worked like that for more than a hundred years.
In February we said in our Bulletin to members:
Living with WorkChoices: full steam into the fog. Nothing clear about councils and WorkChoices.
The High Court didn't clarify whether councils are constitutional corporations. That is an argument yet to be had in some court somewhere else. In the meantime, some councils have been happy to sign Referral Agreements with the local government unions and keep the management of industrial disputes and unfair dismissal applications operating in the New South Wales Industrial Relations system. Others have hedged their bets, asserting that they are a constitutional Corporation and therefore all will start "taking advantage" of the (nasty) options available in the Federal Legislation.
90 councils have already signed Referral Agreements. This removes the question of whether they are constitutional corporations or not because, regardless of this issue, they have agreed to continue with the well-managed arrangements of the past and have their industrial relations managed in the State system.
In case there is any doubt, and in case your council has not yet signed a Referral Agreement, we think everyone should.
OH&S Day of Mourning – depaNews April 2009
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28 April is the International Day of Mourning
The International Day of Morning commemorates those who have been killed or injured at work. It is a sobering and confronting reminder of something we don't really think about - normal people, just like us, who go to work and don't come home. Its something that happens that not just means a death at work but a personal impact on workmates and a devastating impact on friends and family.
There is no legislative obligation in Australia requiring companies to report in their annual reports lost time due to illness or injuries or death. It makes it very hard to work out whether it is more dangerous to work, for example, for BHP, Lend Lease or Leightons Holdings - just picking three at random. These are all big Australian public companies in which institutional investors like superannuation funds would be long-term investors.
Good health and safety at work is a fundamental and critical part of how a company should be assessed. The concept of shareholder value or providing a profit to shareholders should not override the human cost involved in delivering that value or profit.
BHP in their last reported year killed 11 employees at work and this year to date its 7. At least in BHP's annual report, the statistic is easily found at the front of the report in a prominent way and is dealt with as something which is unacceptable and needs to be improved. Leightons Holdings, for example, make the information hard to find and, in leaving it to much, much later in the report, fails to provide proper recognition of its importance. On an hours worked basis, their figures are worse.
Companies report deaths and injuries in different ways. As a proportion of the workforce, as a proportion of market capitalisation and sometimes in relation to hours worked - but never consistently so that comparisons can be made. Governments should act to make sure they do.
These statistics are a stark indication of things that happen that shouldn't happen and which create incalculable human suffering and misery. Think for a minute how it would be if someone in your household didn’t return from work.
And when you think of companies doing the wrong things about health and safety, it is an appropriate coincidence that the Supreme Court last week found a string of company directors from James Hardie guilty of telling porkies about a media release (which the minutes show had been adopted by the Board) that was untruthful about how the company was funding its huge liability arising from killing its own workers.
Company Chair (who insisted on being described as a Chairman) Meredith Hellicar (picture above) bore the brunt. Described by Justice Gzell as "a most unsatisfactory witness", Hellicar and the rest of the Board were convicted of misleading the public. This conviction also coincided with admissions by James Hardie that the Global Financial Crisis would challenge their ability to finance their compensation fund.
In Business Day in the Sydney Morning Herald on 24 April, Elizabeth Knight said this:
"But as this chapter closes on the great James Hardie saga, one cannot help but wonder about how a company that has for decades played hard and fast with schemes to minimise tax, restructuring to avoid its obligations to compensate its victims, and meddled with the truth, can have survived.
It has been forced to repay liabilities, shamed by unions, governments and victims, publicly flogged by the media, been the subject of a special commission and ultimately brow-beaten into appropriately compensating its victims."
How has it survived, knowing what we know about how it has conducted its business? Simple really, virtually all big institutional investors would be invested in James Hardie (even as they acknowledge its poor governance and health and safety) and in a terribly sad irony, even the superannuation funds to which the dead and dying James Hardie employees belong.
It's time someone found a way of bringing these companies to account.
Why shouldn't there be a legislative requirement that companies call an Extraordinary General Meeting of shareholders whenever there is a death at work? Why shouldn't there be a standard and consistent reporting framework so that institutional investors (and even ordinary members of the community who want to work out which company they think is a good one and which company isn't) can, when they are valuing a company to make a judgement about investment consider how many people they kill and as well as things like their price:earnings ratio?
The James Hardie convictions make us all aware that companies have moral obligations to the community, and those who work for them, as well as a financial obligation to shareholders.
The Herald got it right in their editorial on Monday 27 April:
"The core legal argument of James Hardie is that it was not the company's fault that people died terrible deaths. It was the fault of subsidiary companies, not the parent company. Therefore the liability lay with them. The compensation trust set up by the parent company went beyond its legal requirements. Misleading comments were made by the public relations department, not the board or senior management.
That, in a compressed nutshell, is the James Hardie case. It is morally repugnant, and transparently so."
BPB survey on accreditation – depaNews November 2008
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Click here to view the November 2008 issue dedicated to accreditation.
Robbo's Pearls...
Go to jail Meredith!
The High Court on Thursday 3 May hammered the final damning nails into the disgraced corporate reputations of seven James Hardie Board members. The Court unanimously held that the seven non-executive directors had breached their duty to act with care and diligence by approving the release of a statement to the stock exchange in 2001 which misled the market about the company's funding of its workers’ compensation liability. The Court overturned a decision of the NSW Court of Appeal which had let the disgraced directors off the hook.
These people are all corporate bluebloods, previously respected by business, government and the market. They are now disgraced and, trying to cut a complicated story short, the Court also referred back to the NSW Court of Appeal the consideration of penalties including disqualification. The High Court makes it abundantly clear that the Board knew the foundation was underfunded and had specifically developed a strategy to restrict news to the finance pages and their narrow sectional interests rather than provide it generally as news.
James Hardie has killed more Australian workers than most. While Australian workers will continue to die for decades from contact with their products, the damage is not just restricted to anyone employed by them but they've also killed kids, wives, family and friends who came in contact with the dangerous asbestos fibres - fibres known to be dangerous when mined in ancient Greece and the Roman Empire.
Companies manufacturing asbestos sheeting in our lifetime preferred to employ older workers. They believe this managed their financial liability because mesothelioma symptoms take a long time to appear and if they employed older blokes they are more likely to have retired and die before the asbestos gets them.
It is now up to the NSW Court of Appeal to review punishments. Not being able to operate as a company director again is the least of it and the original fines of $35,000 each for these seven should have a series of zeros added.
More is the pity that these are not criminal offences and this lot of miscreants won't end up in jail. It is a pity too that we still don't use the stocks because it would be fitting for the seven executives, and especially ex Chairman (sic) of the Board Hellicar, to spend a few weeks in the stocks in Martin Place so that we can all tell them what we think.
While the High Court has nailed these people for endorsing a misleading media release about the underfunding of their liability, there are many implicated in the approval of the NSW Government for Hardy to restructure and move its centre to the Netherlands as part of a process of trying to quarantine their asbestos liability.
Amongst other things, 80 blueblood respectable people of wealth, privilege and reputation provided character statements in support of Hellicar when first prosecuted. I'm going to publish who those people are.
As the Chair of the Investment Committee of LGS I attended the annual conference of the Australian Council of Superannuation Investors in Melbourne in 2004. The guilty Hellicar participated in a panel about corporate behaviour. She was politely asked a question about the recently announced NSW Government investigation of the underfunding of their liability and she told a packed hall of institutional investors that the company had done nothing wrong and that all would be proven. We suspected it was a lie then and we know it is a lie now and I will always regret I didn't boo and heckle this disgraceful performance.
But no one else did anything either. Institutional investors in Melbourne are all very polite and wouldn’t want to frighten the companies Australian superannuation funds invest in. Even those killing Australians, deliberately underfunding their liability for compensation and misleading the market and everyone else about it.
Maybe it's time to do some frightening.
No commentsIt has been
since Gosford council agreed to undertake a review of its investigation procedures and forward a draft for comment. We're still waiting.
View the full article: Gosford apologises for their conga line of incompetents
On 13 October 2010 lawyers acting for Wagga Wagga builder Peter Hurst advised the Council that he would apologise to council staff for his discredited allegations. He then changed his mind without explanation and we have been waiting 587 days for the apology.
View the full article in depaNews November 2010: Developer agrees to apologise in long-running Wagga Wagga unpleasantness
