The New South Wales Government has decided that it will not be proceeding with recommendations to compensate the relatives of deceased asbestos victims as this would constitute a material breach of the 2006 agreement between the government, unions, victims and James Hardie. The recommendation was aimed at achieving fair compensation for family members whose relatives had died prematurely due to asbestos related illnesses before receiving the full compensation awarded them.
According to WorkplaceOHS.com.au:
Fairer compo for asbestos victims’ relatives won’t proceed
A recommendation to remove restrictions on the compensation available to the relatives of deceased asbestos victims has today been knocked back by the NSW Government.
The NSW Attorney General, Greg Smith MP said that the government had reluctantly decided it would not be appropriate to implement the Law Reform Commission’s recommendations in its report on compensation to relatives.
This decision followed legal and actuarial advice which indicated that to do so would have constituted a material breach of the Asbestos Injuries Compensation Fund (AICF) Funding Agreement.
That Agreement was entered in 2006 into following negotiations between the NSW Government, unions, victims’ representatives and James Hardie. It includes a provision under which the NSW Government promised it would not legislate to increase or decrease damages for dust diseases.
The AICF Funding Agreement is the key mechanism by which Australian asbestos victims continue to have access to around $1.5b in compensation funding from James Hardie. The Agreement will run for at least another thirty years.
‘The Government appreciates and regrets that this response will disappoint some asbestos victims and their families,’ Mr Smith said.
‘However, we hope that they will understand why the Government needs to consider the importance long-term of providing certainty of continued compensation to all asbestos victims, both current and future generations.’
The Law Reform Commission’s report made recommendations for abolishing a legal principle so as to achieve greater fairness for the families of deceased dust diseases victims who may be disadvantaged by the existing law when the victims die before completing their actions for damages
The decision was met with criticism from unions, Greens and the families affected. Unions NSW pointed out that WA, Victoria and South Australia had adopted similar recommendations. Greens MP and spokesman David Shoebridge accused the government of not doing enough to ensure fairness for the families of asbestos victims, considering that 3 other states had adopted the recommendations. While opposition leader John Robertson said he believes that government has reached a new low in this decision.
In related news The High Court of Australia upheld a decision that found 7 directors of James Hardie guilty of making misleading statements about its asbestos compensation fund, reiterating that this case is not about numbers or profits but about people’s lives. The court maintained that directors need to be held accountable for their actions and their statements to the public.
SafetyCulture.com.au had this to say:
In 2009 the Supreme Court of New South Wales found former James Hardie non-directors had breached the Corporations Act when making the statements in 2001.
In 2010, the non-executive directors successfully appealed against this decision. But the Australian Securities and Investment Commission (ASIC) appealed against the decision in the High Court the following year, and was successful.
“The case brought into sharp focus the fundamental responsibilities of both executive officers and non-executive directors who are ultimately responsible for significant public company decisions, and the release of information concerning those decisions, to the share market, employees, creditors and the public,” said ASIC Chairman Greg Medcraft.
AMWU National Secretary Paul Bastian also welcomed the decision but questioned whether the law was tough enough on directors and executives generally.
“The Corporations Law needs real teeth to stop fraudulent conveyancing of finances and to be able to pierce the veil of multiple company holdings,” Bastian said in a media statement.
“It also needs to hold corporate directors to account for their moral behaviours and to be able to impose lasting and meaningful penalties on them such as having to attend death-bed hearings of victims and their families or imposing heavy community duty fines.