SENATE STANDING COMMITTEES ON ECONOMICS INQUIRY INTO THE EFFECTS OF NON-CONFORMING BUILDING PRODUCTS ON THE AUSTRALIAN BUILDING AND CONSTRUCTION

Transcription

1 SENATE STANDING COMMITTEES ON ECONOMICS INQUIRY INTO THE EFFECTS OF NON-CONFORMING BUILDING PRODUCTS ON THE AUSTRALIAN BUILDING AND CONSTRUCTION INDUSTRY PROTECTING AUSTRALIA FROM ASBESTOS VICTORIAN TRADES HALL COUNCIL SUBMISSION JANUARY

2 CONTENTS Executive Summary 3 Recommendations 4 Submission 5 Conclusion 7 Appendices 8 Endnotes 16 2

3 EXECUTIVE SUMMARY The Victorian Trades Hall Council (VHTC) was founded in 1856 and is the peak body for unions in Victoria. VTHC represents approximately 40 unions and over 400,000 Victorian workers. These workers are members of unions that reach into every industry in the state, both in public and private sectors. Occupational health and safety (OHS/WHS) is a vitally important issue. All workers have the right to work in an environment that is safe and without risks to health. Employers have a duty to make every effort to ensure the safety and health of workers. It is an important role of the Australian Government to ensure that adequate border controls prevent asbestos from reaching workplaces. Mesothelioma and other asbestos related diseases can be caused by exposure to a single asbestos fibre (50 to 200 times thinner than a human hair) which means that there is no safe level of exposure to asbestos. The financial cost of treating asbestos related diseases far outweighs the cost of importing cheap substandard products from overseas by 4 to 1 for every dollar spent on asbestos containing materials, the Australian tax payer will pay $4 on the healthcare of those struck down with asbestos related diseases 1. The human cost is incalculable. In Australia, we have known this for some time. Unions were at the forefront of the fight against Asbestos from the very beginning 2. It was in 2003 that a ban on importing asbestos was enacted by the then Howard government. While the ban is a major milestone on the road to an asbestos free Australia, it has become apparent our current legislation, penalties and resourcing of the importation ban are failing to protect all Australians from asbestos. The Yuanda debacle is just one instance amongst many that have occurred in recent years. During the extension period granted for submissions another instance of imported asbestos has been found in commercial quantities of talcum powder at the Akzo Nobel paint manufacturing plant in Sunshine, Melbourne. We cannot sit by and continue to let asbestos containing material (ACM) flood into Australia. VTHC welcomes the opportunity to contribute to the Government s inquiry into the illegal importation of products containing asbestos (see Appendix A). Strong legislation backed by a commitment to its enforcement and the adequate resourcing of government departments will go a long way towards helping making Victorian and Australian workplaces safe. The cost of inaction or insufficient action on this issue is too great. 3

4 RECOMMENDATIONS RECOMMENDATION 1 Importers of products that have been known to contain asbestos in the past must be required to conduct independent testing of the product they wish to import prior to importation. Secondly, they must be required at law to conduct regular random testing of the product to ensure that it remains asbestos free throughout the importation contract. All testing must be conducted at Australian approved laboratories. Importers and suppliers of illegally imported asbestos must be required at law to remove and dispose of asbestos containing materials which have been imported or supplied contrary to law. RECOMMENDATION 2 To improve industry s ability to deal with imported asbestos, after intercepting asbestos at the border, Border Force must provide the importer with advice about how to deal with existing product that might have already been imported. That advice should provide the importer with sufficient information to ensure that they protect their employees from asbestos; in particular it should cover at a minimum: a) Calling to the employer s attention that any product imported prior to the discovery should be now be treated as if it contains asbestos until proved otherwise; b) An employer s legal obligation to ensure that all asbestos containing materials or potentially asbestos containing materials must be handled at all times according to the requirements of the relevant asbestos regulations; c) An employer s legal obligation to ensure their employees are duly notified about the asbestos hazard; d) An employer s legal obligation to ensure that HSRs and all employees are adequately informed and consulted throughout the entire process. RECOMMENDATION 3 The ban on the importation of asbestos must be enforced. Therefore, Border Force and State based OHS/WHS Regulators begin to work together to strategically prosecute those who import asbestos containing materials. A report to Parliament must be tabled annually that lists: a) The number of shipments intercepted that year versus the number of shipments total; b) The headline number of prosecutions filed that year; c) How many filed by jurisdiction (i.e. how many filed by Border Force, how many filed by WorkSafe Victoria, etc.) d) The headline number of convictions, fines, and other outcomes achieved that year e) The number of convictions, fines, and other outcomes by jurisdiction. RECOMMENDATION 4 That any asbestos related offence become an indictable offence. The serious risk to the life of people exposed, the high societal cost of treating exposed people, and the high levels of community concern around asbestos exposure are reasons why the importation and supply of asbestos containing materials ought to attract an indictable offence. RECOMMENDATION 5 Border Force and state based OHS/WHS Regulators be adequately resourced to increase their capability to stop the importation and supply of asbestos. RECOMMENDATION 6 A public awareness campaign be run alongside the strategic prosecution campaign to help inform the Australian public about the steps government is taking to protect Australian citizens and to prosecute those who import or supply asbestos containing materials. 4

5 SUBMISSION 1) The continued importation of asbestos puts Victorian workers and Australian workers at risk. VTHC here provides the Inquiry with three Victorian case studies on imported asbestos. 2) These case studies highlight the areas in which our system can be improved to help prevent the importation of asbestos. CASE STUDY 1: AKZO NOBEL 3. Akzo Nobel ( Akzo ) is a paint manufacturer, producing paint from its Sunshine Plant located at 51 McIntyre Road Sunshine. According to a Worksafe entry report (Appendix 2), on 12 December 2016 Akzo received notice from the Department of Immigration and Border Protection that a product imported from China by Akzo contained asbestos. The product was Talc Powder RG-85 and was from supplier Laizhou Yudong Talcum Powder Co Ltd. Talcum powder can be inhaled into the lungs and therefore any asbestos in talcum powder is known as friable asbestos. Friable asbestos is highly hazardous as noted above, mesothelioma can be caused by a single exposure to friable asbestos. Talcum powder is regularly used in the paint industry depending on production requirements, Akzo could use up to 20 tonnes of talc within a week and a half. 4. According to the Worksafe report, Akzo had four other batches of the product RG-85 still in the factory as at 4 January Akzo got two of its employees (one chemist and one storeroom worker) to take samples without protective clothing. The workers did not know what they were testing for and did not know there could be asbestos in the product. The samples taken were sent to be tested. 5. On 4 January 2017 a Worksafe inspector entered the factory after being notified by the Department of Immigration and Border protection. This was the first time workers knew there could be asbestos in the factory. 6. On the 10th January 2017 Akzo met with Health and Safety Representatives. At the meeting Akzo advised that since 4 December 2017 all talcs had been classified as black code. This meant that protective suits and respirator masks were required when handling the product. Akzo also advised that all talc products were being tested and there would be a test of the area where the products are stored and used. Akzo also advised that the initial samples taken on 4 January came back negative. At the 10 January meeting Raymond Jriege (Akzo Health, Safety and Environment Manager) stated that Akzo had been receiving talc from Laizhou Yudong Talcum Powder Co Ltd since October Following the meeting on 10 Jan, more samples of all 17 talc products were taken to be tested by a NATA approved lab. On Friday 13 Jan 2017 Akzo made arrangements to remove two talc batches on Saturday 14 Jan These arrangements were made because the two batches had tested positive for asbestos. Both of these batches had been previously tested and found negative. Both of these batches were from Laizhou Yudong Talcum Powder Co Ltd. 8. These batches had been used in production processes prior to 12 December 2016 and any worker who used them has been exposed to asbestos. Furthermore, the two workers who obtained the initial test samples on 4 Jan 2017 were also exposed because Akzo failed to ensure that they wore adequate protective equipment. 9. While Border Force made the initial discovery on 12 December, Akzo had been using asbestos containing talc since at least October Asbestos in talcum powder is not a new issue and it has occurred before. It was negligent of Akzo to fail to do any independent testing of the talc prior to importing it for two reasons: c) Chinese manufacturers are known to include asbestos in their products because asbestos is not banned in China; and d) In its natural state, talc often contains asbestos fibres which need to be removed if the talc is going to be safely converted into talcum powder 3. Recommendation 1: Importers of products that have been known to contain asbestos in the past must be required to conduct independent testing of the product they wish to import prior to importation. Secondly, they must be required at law to conduct regular random testing of the product to ensure that it remains asbestos free throughout the importation contract. All testing must be conducted at Australian approved laboratories. Importers and suppliers of illegally imported asbestos must be required at law to remove and dispose of asbestos containing materials which have been imported or supplied contrary to law 5

6 10. Once Akzo was made aware of the issue, it made the following errors: a) Asking employees to obtain test samples of talcs without ensuring that the taking of samples was in compliance with the requirements of the asbestos regulations 4 ; b) Failing to notify HSRs and employees about the asbestos Akzo s employees found out when WorkSafe visited the site; c) Failing to provide HSRs with the relevant test results in a timely manner. Recommendation 2: To improve industry s ability to deal with imported asbestos, after intercepting asbestos at the border, Border Force should provide the importer with advice about how to deal with existing product that might have already been imported. That advice should provide the importer with sufficient information to ensure that they protect their employees from friable asbestos; in particular it should cover at a minimum: a) Calling to the employer s attention that any product imported prior to the discovery should be now be treated as if it contains asbestos until proved otherwise; b) An employer s legal obligation to ensure that anyone who handles the ACM wears adequate protective equipment; c) An employer s legal obligation to ensure their employees are duly notified about the asbestos hazard; d) An employer s legal obligation to ensure that HSRs and all employees are adequately informed throughout the entire process. CASE STUDY 2: BRAKE PADS 11. Machinery at Loy Yang Mine in Victoria was found to contain brake pads made of asbestos approximately seven years ago (c2010). It took over 12 months to remove all of the brake pads and replace them with asbestos free brake pads. Employees at the site were potentially exposed to asbestos while the brake pads were used on the mine machinery. WorkSafe did not inspect the brake pads and there was no prosecution for the use of the brake pads. A union member who worked with the brake pads at the mine told us: In order to protect other workers from being exposed to asbestos as I have been, we must stop importing it. 12. Brake pads are a common source for imported asbestos and there have been numerous scandals in recent years relating to brake pads that contain asbestos. VTHC is aware of asbestos in brake pads connected to: Toyota HiAce models Toyota HiLux models Toyota commuter buses Great Wall and Chery vehicles 13. As yet, there have been no prosecutions of any company that has imported the brake pads, or any employer that has failed to adequately protect employees who have to work with the brake pads. This is a significant failure on the part of Customs and the State based OHS/WHS Regulators which have failed to hold anyone accountable for ongoing egregious breaches of the bans on importing, supplying and using asbestos containing materials. Recommendation 3: The ban on the importation of asbestos must be enforced. Therefore, Border Force and State based OHS/WHS Regulators must begin to work together to strategically prosecute those who import asbestos containing materials. A report to Parliament should be tabled annually that lists: a) The number of shipments intercepted that year versus the number of shipments total; b) The headline number of prosecutions filed that year; c) How many filed by jurisdiction (i.e. how many filed by Border Force, how many filed by WorkSafe Victoria, etc.) d) The headline number of convictions, fines, and other outcomes achieved that year e) The number of convictions, fines, and other outcomes by jurisdiction. CASE STUDY 3: TRAM SUBSTATIONS 14. On 15 February 2016, The Age reported 5 that: Yarra Trams contracted Siemans to construct four new electrical tram substations during 2015 and 2015 in East Brighton, the CBD, Thornbury and West Brunswick Testing revealed that the cement sheeting in the flooring of the four tram substations contained asbestos. Siemans stated that Robin Johnson Engineering Pty Ltd was subcontracted to Siemans and was responsible for the flooring material. 6

7 15. The ETU at that time sent out a warning to all of its members about Robin Johnson Engineering Pty Ltd. 16. Since this time, despite two WorkSafe Victoria investigations, there has been no prosecution of Robin Johnson Engineering Pty Ltd. 17. The second WorkSafe Victoria investigation was prompted by a written request from VTHC. WorkSafe Victoria responded in writing (Appendix 3). WorkSafe Victoria stated: The investigation established that Robin Johnson Engineering Pty Ltd may have breached regulation in relation to the supply of four switch rooms with asbestos containing materials in 2014 and However, the regulation is a summary offence and subject to a limitation period of one year. The investigation revealed that the four switch rooms were supplied into Victoria over 12 months ago, and WorkSafe is therefore statute barred from commencing a prosecution for any potential offences ultimately, no prosecution can be against Robin Johnson Engineering Pty Ltd for any offences against regulation This is an extremely disappointing outcome for three reasons: a) WorkSafe Victoria had a prior opportunity to prosecute Robin Johnson Engineering Pty Ltd during its initial investigation in 2015 early 2016 but failed to do so. b) Robin Johnson Engineering Pty Ltd blamed their supplier in China. This means that these asbestos containing materials were imported into Australia. At no time has Australian Customs/Border Force prosecuted Robin Johnson Engineering Pty Ltd for illegally importing asbestos into Australia. c) The current regulations in Victoria only provide for summary offences for supplying asbestos an indictable offence would still be able to be prosecuted. 19. What it reveals is a lack of communication between the relevant authorities and that there is no strategic approach to preventing asbestos importation by holding to account those who break the law. Recommendation 4: That any asbestos related offence become an indictable offence. The serious risk to the life of people exposed, the high societal cost of treating exposed people, and the high levels of community concern around asbestos exposure are reasons why the importation and supply of asbestos containing materials ought to attract an indictable offence. CONCLUSION 20. VTHC recognises that Border Force faces a significant problem trying to stop all asbestos containing material that pours in through our borders. It has been reported that Border Force can only test a tiny fraction of products that enter Australia VTHC also recognises that state based OHS/WHS Regulators are under significant pressures to maintain OHS/WHS standards in a number of areas. 22. In order to ensure that both Border Force and the state based OHS/WHS Regulators are able to prioritise preventing asbestos reaching Australian shores and holding to account those who import and supply asbestos containing materials, it is imperative that these organisations are adequately resourced. 23. The strategic co-operation called for in Recommendation 3 will require a public awareness campaign to ensure that the Australian public is alerted to the focus on keeping Australia safe from asbestos. A public awareness campaign would also benefit industry who will be put on notice about the serious light in which the importation and supply of asbestos is viewed. It is also an opportunity to educate industry about steps they can take to limit their liability to dodgy overseas manufacturers who still use asbestos. Recommendation 6: A public awareness campaign be run alongside the strategic prosecution campaign to help inform the Australian public about the steps government is taking to protect Australian citizens and to prosecute those who import or supply asbestos containing materials. Recommendation 5: Border Force and state based OHS/ WHS Regulators be adequately resourced to increase their capability to stop the importation and supply of asbestos. 7

8 APPENDIX 1: TERMS OF REFERENCE The illegal importation of products containing asbestos and its impact on the health and safety of the Australian community, with particular reference to: a) the prevalence and sources of illegally imported products containing asbestos; b) the effect of illegally imported products containing asbestos on: i) industry supply chains, including importers, manufacturers and fabricators, and ii) workplace and public safety and any associated risks; c) possible improvements to the current regulatory frameworks for ensuring products containing asbestos are not illegally imported to Australia, with particular reference to the effectiveness of: i) policing, enforcement, surveillance and screening of imported products, including restrictions and penalties imposed on importers and end users of products containing asbestos; ii) iii) preventing exposure and protecting the health and safety of workers and other people affected by the illegal importation of products containing asbestos, establishing responsibility for remediation of sites where illegally imported products containing asbestos has been found; iv) coordination between Commonwealth, state and territory governments and the role of the Australian Government in coordinating a strategic approach to preventing the importation of products containing asbestos; d) any other related matters. 8

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16 ENDNOTES Vallance, Deborah A, The Phase Out of Asbestos in the Australian Manufacturing Environment International Journal of Occupational and Environmental Health 2004; 10: Occupational Health and Safety Regulations 2007 (Vic) Part 4.3 Asbestos 5. Adam Carey, Asbestos Found in Four New Tram Substations in Melbourne (15 February 2016) The Age < theage.com.au/victoria/asbestos-found-in-four-new-tram-substations-built-in-melbourne-last-year gmuf69.html>