LAMINATE INSULATION
9.1 Introduction
9.1.1 My Terms of Reference direct attention to advice, warnings and recommendations given to and received by the Australian Government about, in particular, workplace health and safety and other risks associated with the Home Insulation Program (HIP).1
9.1.2 In this Chapter, I deal with those that concerned the use of Reflective Foil Laminate (RFL) insulation in particular. I also consider, having regard to what the Australian Government knew and was warned about RFL insulation, whether it ought not to have been permitted as one of the products installation of which was to be funded under the HIP, if not from the outset, from immediately after the first fatality in mid-October 2009.
9.1.3 On the day the Program was announced by the Prime Minister, one of his constituents sent him an email:
Regarding your proposal to insulate owner occupied homes I wish to implore you to look into the home insulation industry and instigate (a) the quality standards regulation; and (b) some consumer guidance and protection. I know of many people, and I am one of them, who have dealt with home insulation operators and to put it bluntly, they are cowboys…Please, please, please think this proposed stimulus measure through or you will simply be lining the pockets of a bunch of unethical rip off merchants. It will backfire on you as it plays out….2
9.1.4 On 4 February 2009, Ben Burdett, a licensed builder from Sydney, wrote to the Master Builders Association of NSW pointing out what occurred with the insulation of houses for the third runway project in Sydney.3 It speaks of observing ‘the aftermath of rogue
insulation installation’. Reference is also made to fire hazards. The email includes: ‘I have seen the aftermath of the last government insulation “gift” in houses around Sydney airport; the sound insulation that was installed into houses for the third runway project. Rogue contractors could see a quick buck and despite good quality product, with undue haste and lack of care, real hazards and complete redundancy of whole installations was the result.’
9.1.5 Another warning was sent to the Prime Minister’s Office on 4 February 2009 principally concerning the likely cost of the Program, but which recommended that an approved building consultant inspect each house, something that eventually occurred in 2010 when problems with the Program were finally addressed.4
9.1.6 In all some 33 pieces of correspondence were sent to the Prime Minister’s Office, of which seven raised specifically occupational health and safety (OH&S) concerns. Three concerned electrical safety issues. Some warnings concerned the risk of fires.5 1 Especially subparagraphs (b) and (c).
2 AGS.002.007.1532, 1. 3 MBA.003.001.0324, 1-2. 4 AGS.002.008.1330, 1-3. 5 AGS.002.024.0189, 1.
9.1.7 On 9 March 2009, the National Electrical and Communications Association (NECA) wrote to Minister Garrett.6 The letter was referred to the Department of Environment, Water,
Heritage and the Arts (DEWHA) for a response. As perhaps an indication of how busy he was at the time, Mr Keeffe did not reply to the letter until 16 April.
9.1.8 The letter pointed out that NECA is the national industry association representing contractors responsible for the delivery of an installation of electrical voice and data communication systems in Australia. As such its members are responsible for the majority of electrical installation works in residential, commercial and industrial situations. The letter warned of the risk of house fires arising out of the Program. It stated:
Whilst electrical contractors are aware of these statutory requirements specified in the Australian Standards (AS/NZS3000.2007 Clause 4.5.2.3) it is apparent that many installers of thermal insulation are not. NECA electrical contractors operating in the residential sector regularly report that installers of thermal insulation have covered the lights and have created a potentially dangerous situation. The fire services in the States will also have similar data… NECA understands that there is no State or national licencing or registration system for ‘qualified’ thermal insulation installers like there is for electricians, plumbers, builders etc. However, NECA does understand that there are courses available through TAFE and possibly other sources which NECA believes should be a minimum eligibility requirement for the impending government program.
For example, there is a one day course run by TAFE in Victoria for eligibility with the Sustainability Victoria Ceiling Insulation Rebate Program. This may be suitable as a minimum requirement for this Australian government initiative. NECA also understands that the government’s intention is to pay the cost of the thermal insulation installation directly to the installer. This gives the government the opportunity to make it a condition of the payment that the installer of the thermal insulation meet the minimum criteria specified above. Also, NECA also recommends that the government provides guidance to the general public about the need to ensure that the installers undertaking the work do have the required accreditations. NECA would like to offer its services to assist with ensuring our sector of the building industry is aware of the program and not just thermal installation installers.
9.1.9 NECA was not invited to the industry consultation meeting on 20 March, nor subsequently, despite this letter.
9.1.10 Mr Keeffe responded to the letter from NECA on 16 April 2009.7 That letter included:
However, as you have stated in your letter, despite this requirement in the guidelines there remains the risk of new installers not being appropriately trained in procedures to satisfy this and other legal requirements. To ensure that all installers are appropriately trained, the government is currently
developing a training program for new entrants to the insulation industry based on existing units in the current nationally endorsed training package. As a part of this, trades people with no insulation experience who are making a shift to insulation installation will require a two day supplementary training.
6 QIC.006.001.1652, 1-2. 7 AGS.002.013.0362, 1.
9.1.11 As is clear from the preceding Chapter of this report, the requirement for that foreshadowed training was removed.
9.1.12 Mr Chris Boyle from the Queensland Electrical Safety Office (ESO) wrote on 1 April 2009, to Ms Yeend in the Department of the Prime Minister and Cabinet (PM&C):
Given the likely flood of insulation activity from 1 July 2009 I would appreciate your views on what additional advice/action (if any) might need to be taken to ensure that licensed installation installers (with large backlogs of work) undertake a competent and safe job.
9.1.13 This letter found its way to Mr Keeffe, but he did not respond to it.
9.2 Advice, warnings and recommendations about the use
of Reflective Foil Laminate insulation and the risks
associated with it
9.2.1 Mr Ruz: February 2008
9.2.2 I have already dealt with important warnings given by Mr Peter Ruz at the 18 February 2009 Industry Consultation Meeting and his email of the following day. These were, as I have found, cogent, and given early in the HIP’s development. They ought to have alerted the Government to the very real risks to personal safety that installers of RFL insulation in particular were likely to face.
9.2.3 The warnings that Mr Ruz gave must also be seen in light of there being not one person present at the 18 February 2009 meeting who had particular expertise concerning the electrical safety risks that installers would be likely to face. Mr Richards of Master Electricians Australia (MEA—a body that received no invitation to the 18 February 2009 meeting) considered that it was a ‘critical oversight’ of the Government not to have consulted with his organisation given the inclusion of RFL insulation in the HIP.8 As I have
said, NECA was also not invited to any industry consultation meeting.
9.2.4 Ms Ruz’s warnings were not the only ones that the Australian Government had of the very real risks associated with RFL as an insulation product. I deal below with the other warnings and advice given to DEWHA. Some of them, it will be seen, were opportunities for at least one of the later deaths to have been avoided. Most of the warnings, advice and recommendations were ignored or not responded to adequately by DEWHA.
9.2.5 EE-Oz
9.2.6 One of the earliest warnings the Australian Government received after the 18 February 2009 Industry Consultation Meeting concerned electrical risks in cases of retrofitting insulation into existing properties. This came from Mr Anthony Plevey, who was a Policy and Products Manager at the ElectroComms and Energy Utilities Industry Skills Council at the relevant time. At the time of the HIP, the organisation was known as EE-Oz Training Standards Australia (EEOz) and it was an industry-owned company that operated as a skills body for the electrical communications and energy utilities industries.
9.2.7 On 26 February 2009, Mr Martin Paul from the Department of Education, Employment and Workplace Relations (DEEWR) contacted Mr Plevey to seek assistance with setting competency and training requirements for the HIP. Mr Plevey responded on 27 February 2009 by email and stated:
EE-Oz has some concerns with the retrofitting of insulation for domestic dwellings.
As insulation has been mandated for a number of years in state building codes, the majority of the work associated with this program will be in the class of retrofits to existing buildings. The issues in regard to this work and electrical safety are installer OH&S and the longer term safety of such insulation. Installer OH&S issues relate to:
• Installer OH&S issues relate to the entry of installers into older building and disturbing and/or rearranging wiring which may cause an electrical hazard. • Older buildings may require an electrical inspection before work can be
carried out to ensure the safety of older wiring installations. Longer term safety issues relate to:
• The placement of insulation on, near or over electrical wiring. Insulation retains heat and will immediately “de-rate” the ability of wiring to operate at a safe temperature. This may not lead to immediate problems but may lead to accelerated deterioration and eventual failure of the wiring insulation increasing the risk of fire or electric shocks.
• The placement of insulation on, near or over electrical fittings e.g. downlights, ceiling fans, etc, which are in themselves heat sources may also lead to increased risks.9
9.2.8 Mr Plevey then went on to recommend minimum training competencies that installers should have. Of course these were never mandated.
9.2.9 He made this response after having spoken to some of his industry consultants and technical advisers.10 The email identifies the issues which Mr Plevey saw at the time
as being the key issue for a mass roll-out of retrofitting insulation. He pointed out in his evidence that this was different from installing insulation in newly constructed buildings and those under construction.11 He was not aware at the time he prepared the advice
that the use of RFL sheeting was being (or going to be) considered as part of the HIP and so that possibility was not part of his thinking in preparing the advice.12
9.2.10 On 27 February 2009, Mr Plevey also provided a copy of the advice that he had sent to Mr Paul to Mr Craig Simmons, Mr John Ingram and Mr Ken Gardner, who worked for the agencies with responsibility for electrical regulation in Victoria and the Australian Capital Territory.13 At the time, Victoria held the position of Chair of the Electrical Regulatory
Authority Council (ERAC).
9.2.11 On 25 March 2009, Mr Plevey received a response from Mr Paul about the advice he had earlier given. Mr Paul’s email said that the OHS issues Mr Plevey had identified were of ‘paramount importance’. Mr Paul noted that DEEWR was working closely with DEWHA and the Construction and Property Services Industry Skills Council (CPSISC) to develop appropriate training for installers and asked Mr Plevey to provide some assistance to CPSISC to ensure ‘the relevant electrical hazards/risks/safety strategies’ were included in the contextualised OHS components of the course.14 However, Ms Sydney emphasised
that at the time this email was written, CPSISC had not been invited tender to develop resources, and claims not to have seen this email prior to making a statement to the Royal Commission.
9 AGS.002.023.3186, 2.
10 Statement of Plevey at [11] STA.001.035.0001, 8 April 2014. 11 Statement of Plevey at [12] STA.001.035.0001, 8 April 2014. 12 Statement of Plevey at [13] STA.001.035.0001, 8 April 2014.
13 Statement of Plevey at [20] STA.001.035.0001, 8 April 2014; STA.001.035.0009, 1-3. 14 Statement of Plevey at [23] STA.001.035.0001; AGS.002.017.2144, 1.
9.2.12 These statements by Mr Plevey were one further way by which the dangers inherent in retrofitting insulation into homes ought to have been apparent to the Australian Government. Although the advice was given without an awareness that RFL insulation might be used under the HIP in a way that exposed installers to a greater risk of injury or death, it nevertheless raised, in sufficient terms, the risk which might arise from being in a ceiling space, coming into contact with wiring and the risk of disturbing cables which were all material risks inherent in the HIP.
9.2.13 In his email of 25 March 2009, Mr Paul provided Mr Plevey with an outline of a proposed five-day training course for new installers, in which OH&S issues (including electrical hazards) were scheduled to take up the whole of the first day. A course in that form, or anything like it, was not ultimately established. Mr Plevey was notified by his Chief Executive Officer (CEO), who had had subsequent discussions with CPSISC that this was because such a course would be too expensive and/or time consuming.15 EE-Oz was
sent only an outline of the intended training program and gave no formal advice on the training materials ultimately developed.16
9.2.14 Much later, on 26 October 2009, EE-Oz (including Mr Plevey) met with federal officials. He (and others) attended a roundtable discussion with Minister Garrett the following day.17 The minutes of that meeting show that the risks associated with categories of
RFL insulation products and methods of fastening were discussed.18 In particular, it was
noted that mechanical fasteners have the potential to pierce electrical cables and cause an electrical hazard. By that time, Matthew Fuller had been killed in the very kind of circumstances which Plevey had foreshadowed (albeit without knowledge of the possible use of RFL sheeting) some six months earlier.
9.2.15 Evidence of internal knowledge by the Australian Government of risks
9.2.16 Relevant to the issue of what warnings, advice and recommendations the Australian Government received about safety risks is the state of its own knowledge about such matters, whether as a result of having received such information, or coming to an awareness by its own efforts.
9.2.17 It is clear that DEWHA, from as early as 3 April 2009, was aware of a real risk to, among other things, the safety of installers. This emerges most clearly from the records of a ‘Technical Advisory Group Workshop’ which took place on that date. It was attended by Tony Marker (Pitt and Sherry), James Fricker (independent consultant), Ian Cox-Smith and Mark Jones (BRANZ—Building Research Association of New Zealand), Brian Ashe (ABCB—Australian Building Codes Board) and Mark Collett (South Australian Government) and others. Mr Kimber was present at that workshop and Mr Keeffe attended part of the meeting.19 Mr Kimber summarised the discussions
that took place at it in an email to Mr Keeffe.20 An agenda produced for that meeting
(which was also attached to Mr Kimber’s email to Mr Keeffe) said: