Something fishy in Tasmania’s abalone industry

Recently, SafetyAtWorkBlog received a long anonymous email concerning the death of David Colson, Tasmanian abalone diver who drowned in October 2007.  The Coroner completed his inquest into the death and released his investigation findings in early January 2010.  An earlier blog article on the findings can be found here

The correspondent pointed out that Allen Hansen, founder and managing director of Tasmanian Seafoods, the company that was to receive the abalone harvested by David Colson and Tony Burton, and a director the Tasmanian Abalone Council for an Export Award.  The award was in fact an Export Leadership Award.

There is no indication that workplace safety is a criteria in the awarding of the Export Leadership Awards.  The Award website describes Hansen as

“…truly an industry ‘builder’ and has made an outstanding contribution to developing the premier image of Tasmanian abalone.”

Attitudes to OHS in the abalone industry

The Coroner found that Allen Hansen’s company, Tasmanian Seafoods, did not have any procedures in place for when a boat did not return on time. The Coroner’s finding states that

“Mr Hanson stated that there was no safety response procedure in place for an overdue vessel.”

The findings discuss some of Hanson’s comments during the inquest:

“Mr A Hanson, the Managing Director of Tasmanian Seafoods Pty Ltd, the entity that held the quota entitlement used by Mr Burton on this occasion, was adamant that a diver engaged to fish a quota was a sub-contractor and that they independently decided how they went about achieving the catch and that no duty of care existed between the quota holder and the diver as the environment in which the diver operated was out of the control of the quota holder.”

“At best there appears to be a principal/sub-contractor relationship. It is of concern however that Mr Hanson and others suggested that because of this relationship the principal had no occupational health and safety responsibilities at all for the manner in which the diver conducts his operation.  This is not the basis upon which industry operates on dry land and this apparent gap in responsibility is justified on the basis that what happens at sea could only be controlled by those on the vessel.”

In one media report this month Hansen is reported to have said of David Colson’s parents:

”they seem to want to blame me, whereas I don’t really have anything to do with it.  It’s a terrible, unfortunate incident.”

There were several instances in the Coroner’s findings where representatives of the abalone industry denied that there was any occupational health and safety relationship between the boat owner and the processor.  The Coroner says that there was a contractor relationship.  The Tasmanian Workplace Health and Safety Act defines a contractor as

“ a person engaged by any person (otherwise than as an employee) to perform work for gain or reward;”

Tony Burton, the skipper of the “Too Easy” seems to have been in this type of relationship with Tasmanian Seafoods.  David Colson was, in effect, a sub-contractor to Tasmanian Seafoods.

The abalone industry sees an abalone boat as somehow different from workplaces on land.  The Tasmanian OHS Act defines a workplace as

“.. any premises or place (including any mine, aircraft, vessel or vehicle) where an employee, contractor or self-employed person is or was employed or engaged in industry.” [emphasis added]

It would seem that legislative OHS obligations were applicable at the time of David Colson’s death on David himself, Tony Burton, Tasmanian Seafoods and Alan Hansen, as the head of the company.

Some of the comments by the chief executive of the Tasmanian Abalone Council, Dean Lisson, illustrate a cultural attitude in the industry and a lack of understanding of OHS.  Lisson is quoted as saying

“….on the day in question, David Colson chose to put excess amount of fish on the vessel.”

Lisson’s other comments about his perception on the risk/reward nature of the industry are reported elsewhere.

Government response

The Coroner recommended that

“The Minister for Workplace Relations and Director of Industry Safety investigate and consider the creation of a Code of Practice pursuant to s22 of the Workplace Health & Safety Act 1995 and/or directives pursuant to s39 of that Act to control the manner in which abalone taking and harvesting is conducted in order to ensure the safety of those engaged in this industry and upon vessels which are workplaces for the purposes of that Act.”

The Workplace Relations Minister, Lisa Singh has accepted the recommendation.

The Government needs to do more.  All indications are that Tasmanian Seafoods does not understand its OHS obligations to its contractors and subcontractors.  The lack of procedures in this company illustrated in the Coronial findings would have been sufficient for prosecutions under the OHS Act in other jurisdictions.  Legal action under the Workplace Health and Safety Act should be considered against Tasmanian Seafoods and Allan Hansen.

The attitudes expressed in the Coroners Court, reflected in the findings, and in newspaper reports by representatives of the Tasmanian Abalone Council show not only a lack of understanding of occupational health and safety obligations but a dismissal of them and even a denial of the relevance of the law.  If the Minister wants to achieve a safer abalone industry as quickly as possible, then she needs to go beyond the code of practice and instigate safety regulations for workers in the abalone industry.

The potential weakness of any law is its enforcement.  The Government needs to commit sufficient resources to this industry so that all participants have a clear understanding of the application of the law and the cost for non-compliance.  The Tasmanian Government was already under pressure over its inspectorate resources concerning the Beaconsfield mine.  It seems from the Coroner’s findings that underground mines weren’t the only industry that required additional policing in Tasmania:

“Mr Yovich, Senior Inspector at Workplace Standards Tasmania, highlighted that although a fishing vessel was a workplace and thereby controlled by the Workplace Health and Safety legislation, there was in practice no capacity for his organisation to police these workplaces.”

Workers Compensation

In many Australian jurisdictions, workers’ compensation insurance is a basic business requirement.  There is a legislative requirement in some jurisdictions that any business operating with a payroll above a certain dollar figure is required to have such an insurance policy.  It would seem sensible for businesses in high risk industries to have such a policy also.  Any industry involved with the unpredictable sea could be considered high-risk.

Below is a table taken from an Access Economics report and based on Safe Work Australia data.

SafetyAtWorkBlog has been informed that abalone divers are exempt from any requirement to have workers compensation insurance policies.  It was explained that this is due to abalone fishers being paid by the kilogram of fish.  The official reason is outline in the Tasmanian Workers Rehabilitation and Compensation Act 1988 (Part 4, 5 d) which states

“This Act shall not apply to any person –…….

(d) who is a member of the crew of a fishing boat, and is remunerated wholly or mainly by a share in the profits or gross earnings of that boat;….”

It is likely that David Colson’s family is not entitled to any compensation under this Act for the death of their son.

The “exemption” above is one example of how workers compensation data under-reports the incidence of workplace injuries and death in Australia.

National OHS harmonisation

Australia remains in the middle of a program of OHS legislative reform with the intention of achieving harmonised OHS laws and regulations across all jurisdictions, including Tasmania.  Significantly, this applies across all industries including those who had industry-specific OHS laws.  Much of the attention was given to construction and transport but Tasmania’s abalone industry will be covered by the new OHS legislation as much as will any industry.

So there is a national timetable and agenda that the Tasmanian abalone industry representatives need to get up to speed on.  In relation to the attitudes and perceptions listed above from the industry the new model Work Health and Safety Act may present some challenges.

For instance, the definition of a worker will clearly include abalone deckhands and divers:

“Meaning of worker

(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work:

(a) as an employee; or

(b) as a contractor or sub-contractor; or

(c) as an employee of a contractor or sub-contractor; or”

There is an even clearer and more relevant definition of a workplace:

“Meaning of workplace

(1) A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

(2) In this section, place includes:

i. vehicle, vessel, aircraft or other mobile structure; and

ii. any waters and any installation on land, on the bed of any waters or floating on any waters.”

In October 2007, the Tasmanian abalone industry were given a wake-up call that it did not hear.  Two years later, the wake-up call has been sounded again and this time it must be heard.  It must be analysed and the way that abalone fishing is managed must change.  There is a window of around two years for the abalone industry to embrace occupational health and safety before it is imposed through the national OHS reform agenda.

And if the OHS reforms are not enough the second stage is reform of the workers’ compensation systems.

Kevin Jones