OH&S Day of Mourning – depaNews April 2009

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."