The Guardian 26 January, 2005

James Hardie forced to pay up

At the end of last year unions were on the brink of forcing James Hardie to become the first transnational corporation in Australian history to hand over billions of dollars on moral rather than legal grounds. Their campaign — rallying workers, asbestos victims, councils, state governments and plaintiff lawyers — saw the building materials giant agree to open-ended funding of Australian asbestos compensation claims for at least 50 years.

The agreement sets out the mechanics of how claims will be funded, starting with an upfront $250 million "cash buffer", and commits the parties to completing, and implementing, a legally-binding document by June 2005.

Signatories to the agreement are JHINV (the restructured James Hardie Industries), the ACTU, Unions NSW, Bernie Banton representing victims, and the NSW Government.

The signing marked a stunning about-face from a company that earlier in the year was telling victims it had no legal or moral obligations to them. The man who made that statement, CEO Peter Macdonald, was replaced after a commission of inquiry found evidence he had broken laws when reconstituting the company outside Australian legal jurisdiction.

"We have a commitment by the Dutch-registered company to fund compensation claims for personal injury victims in Australia", ACTU secretary, Greg Combet, announced. "It is an open-ended commitment and that is significant because nobody knows how many victims of James Hardie products there will eventually be.

"It's a fantastic result from a strong union campaign and a great outcome for the Australian community."

Initially Hardie insisted on a statutory scheme that would have restricted victims' rights and compensation payments and was still holding out in November for conditionality and substantial discounts.

Combet said the agreement dealt with the core concerns of victims and unions — open-ended funding to compensate current and future victims; protection of victims rights' in the compensation process; and maintaining the commercial viability of the JHINV Group so it can deliver.

The agreement vindicates a number of people who were on Hardie's case years before it became a cause célèbre, most notably the Australian Manufacturing Workers Union's Paul Bastian and former Maritime Union of Australia official, Barry Robson.

Bastian's union drove the story into the public domain.

It wasn't until businessmen in charge of James Hardie's original trust fund confirmed Bastian's core accusation they been left grossly under-funded that NSW Premier Bob Carr put in place the inquiry that blew the lid off the corporate shenanigans.

The net present value of JHINV's funding commitment, according to financial modelling, is $1.9 billion. Actuaries KPMG estimate the present value of its asbestos liabilities at $1.5 billion.

Key elements of the heads of agreement include:

  • an open-ended funding commitment;

  • a buffer payment of three years, upfront, estimated at $250 million;

  • establishment of a special purpose fund to hold the buffer, receive JHINV payments, manage claims and pay victims;

  • JHINV will top the fund up yearly, based on annual actuarial assessments of its liability;

  • those payments will be capped at 35 percent of free cash flow, with any shortfalls to be made up from the buffer or previous contributions. In the first year that cap will be around $70 million but it is expected to top $140 million by 2014;

  • there will be a minimum annual payment, set at 10 percent of free cash flow;

  • from 2012, there will be flexibility to enable the cap to move down, and back up, with reference to actual claims experienced and the percentage of cash flow being drawn;

  • the minimum term of the funding arrangement is 40 years. Then, by mutual agreement, outstanding liabilities may be covered off by a lump sum payment. If there is no agreement at that time, between JHINV and the NSW Government, the term shall extend for another 10 years, with provision for indefinite extension if no termination agreement can be reached;

  • various releases from civil liabilities for the company, its directors and officers, have been agreed;

  • JHINV will fund an asbestos awareness program and contribute to medical research;

  • the binding principal agreement will contain remedies in the event of JHINV defaulting on its obligations. It will also deal with the position of asbestos compensation liabilities in the event of insolvency.

    To become legally enforceable, the agreement must be endorsed by James Hardie shareholders.

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