The Salvemini court saga illustrates many problems with prosecutions, justice and care

Sometimes when there is a procedural or organisational blockage, an opportunity or potential solution appears out of the blue. A South Australian Supreme Court decision on 3 October 2012 (not yet available online) may be just such a case.

Almost seven years ago Jack Salvemini was working on a shark fishing boat in the Great Australian Bight when he became entangled in a net being winched and was, according to various reports, either strangled or crushed to death. SafeWorkSA prosecuted the company running the boat, Jean Bryant Fishing and the skipper of the boat, Arthur Markellos.  Both were found guilty of breaching the occupational health and safety laws in effect at that time.

The company was fined $A71,000 from a maximum fine of $A100,000. Markellos was fined $A17,000. Arguments and appeals have continued on over this case since the original prosecution in the Industrial Magistrate’s Court in November 2010. (This judgement also provides the best level of detail of the fatality and its impact on all parties including Arthur Markellos)

Following the Supreme Court decision, Jack’s father, Lee, said he would like to talk with the Attorney-General to discuss what more can be done on his quest for justice. Later in the evening South Australian Premier, Jay Weatherill, commented on the case and offered to meet the family. There is a political element to the Premier’s offer as it makes an important point about the Work Health and Safety Bill currently stalled in the SA Parliament.

The employment status of the skipper changed over the course of the various court actions from “self-employed” to “employed“. OHS laws in Australia, until very recently, relied on the employer/employee relationship, which some have described in relation to the Salvemini case as a loophole.  Both parties had OHS duties to the other but the duties of an employer were broader and more detailed due to the employer having control of the workplace and work activity but, in the socioeconomic context, also benefited most from the operation of the business through profits.  However, the employment status was crucial in determining irresponsibility and in prosecutions for OHS Breaches.

According to an online news report:

“The Supreme Court has now dismissed SafeWork SA’s appeal, ruling Markellos was an employee rather than a self-contractor, so not liable to face prosecution over the workplace death.”

New (model) Work Health and Safety (WHS) laws in Australia have introduced the concept of the PCBU – a Person Conducting a Business or Undertaking. This effectively removes the employer/employee basis of workplace health and safety laws and therefore remove the “loophole” in future cases similar to the Salvemini case.

It is important to note that the description of a “loophole” is not accurate as the social relationships of employment have changed since 1986, the year of the original OHS legislation in South Australia.  Societal change and, perhaps lax, legislative reviews have generated this “loophole” rather than the situation resulting from specific design.

It may also be relevant to note in this context  that the financial penalties available under the model Work Health Safety Act being implemented in many Australian States have greatly increased in comparison to South Australia’s maximums as described in the Salvemini case.   The new WHS laws would apply, for category 2 offences, a  penalty to a corporation of up to $1.5m, an individual as a PCBU or an officer of up to $300k and up to $150k for an individual, for instance, a worker.

SafeWorkSA, who has supplied additional information relevant to this article in the comments below, has prosecuted other companies in the fishing industry with one case in 2011 having similarities to the method of Jack Salvemini’s death.  A media release about the prosecution of Fig Bay Fisheries says:

“… Fig Tree Fisheries Pty Ltd was convicted and fined $22,500 after a deckhand had his hip broken in an incident at sea off Kangaroo Island in January 2007, aboard the vessel, ‘Fig Tree Bay’.

The court heard how the man’s foot was caught in the net as it was drawn aboard the vessel, drawing him into contact with the spreader bar at the front of the spool. He suffered a broken hip as a result, and complications following initial surgery then necessitated a total hip replacement. He has been unable to work since the incident having also suffered depression.”

According to a March 2011 report into Health and Safety in the Australian Fishing Industry:

“There were six reports from South Australia that related to injury, disease or fatality occurring in the commercial fishing industry, in the years 1988 to 2008 inclusive. Four were in relation to deaths (1993 – 1998), one incident of a worker being struck by the propeller of an outboard motor (2006), and two incidents where injuries and lacerations to hands were experienced (2008). There were no incidents or accidents reported in the years between 1998 and 2006, that could be located. The decrease in the severity of the injuries sustained is noteworthy. The deaths were all attributed to either a direct failure to provide a safe working environment (1993, 1996 and both in 1998) either through training (e.g. diving without formal qualifications or training),  induction, or adequate securing of equipment; and/or a failure to enforce use of safety equipment, (e.g. in the form of floatation devices (1996)).” (page 10)

The death has had a massive emotional impact on the family with worker safety advocacy group, VOID, becoming involved and the family even appearing in a short YouTube video discussing their grief.

VOID’s commentary on the case and court deliberations, curiously, raises the matter of drug testing following workplace incidents implying that drugs may have been relevant to the Salvemini case.  The question of drugs was also raised in a tabloid television news report in 2012 which included discussion on this matter with the Salvemini family and Andrea Madeley of VOID.

The Salvemini story rather than the court journey illustrates the complexities of a family’s grief and the desire, perhaps obsession, for justice.  Just as policy makers now focus on the “whole of government” or “life-cycle” issues perhaps consideration should be given by the Courts or the OHS regulators to the “grief cycle” experienced by families affected by workplace fatalities.  If there is a continuous occupational duty on injured workers to return them to health and work, perhaps a similar societal duty should extend to the family of people who die at work.

Regardless of the revision of Arthur Markellos’ employment status, the prosecution for an OHS breach, in this case one that led to a fatality, and the penalty against Jean Bryant Fishing is straightforward.  What is not, and rarely is, straightforward is providing a family with a sense of justice and sufficient answers to provide a context to their grief.  OHS regulators often look to a legal closure but there seems to be a need to go beyond legal closure in some cases and the Salvemini situation may be such a case.

Kevin Jones

reservoir, victoria, australia

15 thoughts on “The Salvemini court saga illustrates many problems with prosecutions, justice and care”

  1. AequoEtBono – there has to be an easier way to interpret that.

    There was a lack of definition in the OHS&W Act 1986. Unlike the WHS Bill, there was no helpful definition as to what makes an employee and what makes an independent contractor or self employed person.

    One one hand there was a clearly defined and signed contract that stated with clarity that Markellos was *not* an employee. He received no employee entitlements. His payment came by way of a percentage of the catch. From memory of the contract, he also supplied his own wet weather gear and life jacket.

    All of this is obviously open to different interpretation but I suspect (rather strongly) had the Skipper been charged as an employee in the first instance – and given that this issue was raised by Markellos under the single Magistrate – the case against him would have failed before the first week at trial. Magistrate Hardy clearly was of the opinion that based on the evidence before him, the skipper was self employed and not an employee.

    It seems to me that in the end, the decision was hardly easy. It was a criminal matter and there falls what element of doubt there may have been – in favour of the accused.

    The Crown was in a very difficult predicament. The current Act has had its day.

  2. The decision is now available here:

    http://www.austlii.edu.au/au/cases/sa/SASCFC/2012/114.html

    It turns upon a pretty narrow point of statutory construction – essentially Markellos could not be guilty of the offence with which he had been charged because an element of that offence rrequired the prosecutor to rpove beyond reasonable doubt that Markellos was \”a self-employed person\”.

    The Full Court held that even if, on the facts, he was \”a self-employed person\”, the effect of the deeming provision in s 4(2) of the Act was to deem Markellos to be the employee of Jean Bryant Fisheries P/L (and, thus, not to be self employed for the purposes of the Act).

    As there is no equivalent deeming provision in the Model Act (and no apparent impediment, for example, to a person like Markellos being charged under s 28(b) of the Model Act if a similar incident had occurred post-harmonisation) no broader legal issue arises from he case

  3. Kevin, could you please tell me and your readers where you got your false information from that I refused counselling?

  4. There is nothing like reading an opinion that is not only backed by passion and determination to see the truth, but by someone thats been there! done that! and still has the heart and soul to stand for those that will never see justice, never have someone held accountable for the lost life of their loved one.
    Nothing urks me more, than some office jerk having an opinion on an experience in which themselves have never experienced.
    So very well said Andrea.

  5. Andrea

    I don\’t know you from a bar of soap, however, keep jabbing the sleeping giant until the big fellow awakes. I gather you are from SA. In NSW we have just begun dealing with a fellow called Alan Jones via social media and proved that no-one or no organisation is bigger than than the enraged or hard done by.

  6. In the first week of June this year, Lee Salvemini and myself attended a meeting with the Industrial Relations Minister Wortley. Present at this meeting was also a senior staff member of SafeWork SA as well as one of the Minister\’s advisers.

    This meeting was held in order to clarify some of the concerns Lee Salvemini had regarding Jack\’s death. Some of those concerns are outlined in my earlier post.

    It was also at the meeting that I welcomed the opportunity to sit down with the CEO of SafeWork SA, Bryan Russell, to hash out some of the more general and contentious issues I had with the department. I suggested we clear the air … empty the trash … and so I waited …

    There has never been a response or any indication that Bryan Russell was interested in taking us up on that invitation.

    So Kevin, in answer to your question – yes, VOID has made a submission to that inquiry. Our existence would be pointless if matters like these are not addressed.

    I very much need for you and your readers to understand that all this \’noise\’ is not driven by grief. It is true, grief is very likely where it all began. The questions and the need to understand what actually happened – that is \’grief\’ and this is driven by the need to heal.

    Grief turns into something very different when one has no option but to turn to the \’bureaucracy\’ in their quest for that need to \’heal\’. I know families who have buried someone and who have not needed to deal with these same frustrations. That has largely been due to a more accommodating and compassionate company mindset. See, we accept that people make mistakes and we even accept that sometimes those mistakes can cost lives. What we do not accept is doors being slammed, lawyers calling the shots and those who hurt the most being placated with empty words and promises.

    The only obsession here is for the TRUTH and there is no one more deserving of the truth than those who loved Jack the most.

    So I guess we keep jabbing the sleeping giant … eventually something\’s going to have to \’give\’ …

  7. May I respond to the comment that OHS regulators are not responsible for workplace safety … perhaps a little interpretation is required here.

    The Macquarie Dictionary defines a \’regulator\’ as someone who regulates – and it defines the word \’regulate\’ as \”to control or direct by rule, principle, method, etc.\”

    So what it is precisely that a safety regulator is supposed to be doing if not to regulate – to control, to direct by rule (by law) principle or method? The department is a complete waste of money if it believes its role has no responsible bearing on regulating workplace safety.

    Also, please let us be completely clear – Lee Salvemini never refused counselling. In fact he did not only accept the offer made by (I think at the time the Crown Solicitors offered counselling which he did accept) but he also had his own professional medical help in this area. I guess whomever wrote the above response from the Department hasn\’t quite understood the issue here. Lee Salvemini did not need medical help, he needed for these people to do their job properly!

    There were no less than 5 different GPS positions quoted as to the location of the Jean Bryant at the time of Jack\’s death. The bureaucrat had evidence in its possession well before the trial began that questioned the time of death. There were those at Eucla at the time that gave investigator\’s information that Jack was killed at around 10am in the morning and not at 4.30pm that afternoon – and that the incident happened 70 miles from Eucla and not where it was alleged to have happened! Do you really think counselling is going to make a scrap of difference to a Dad or Mum or brother or sister – knowing that basic information like this has just been ignored?

    How bloody dare Juanita Lovett stand there with her chin wobbling on the news service – ceasing the opportunity to chant legislative changes! Telling South Australian\’s that the justice system failed the Salvemini\’s when it was her very own department, SafeWork SA, that conducted a shoddy, second rate investigation and failed to react to evidence that could have made the world of difference to this family!

    Kevin I am so very sorry but please, there was a clear case of fraudulence in that \’document\’ whether it be a signed induction or a signed procedural document – the point is that this employee saw his signature on a safety document that he had never laid eyes on and no one did a damned thing about it.

    I suggest your \’source; sharpen their knowledge. I am furious and so very tired of their lame excuses. This is one in a long line of stuff-ups and the clock ticks. You bet … things will change here. We will get a proper \’regulator\’ … we will fight for that because our dead kids tell us that is the right thing to do!

    1. Andrea, I believe that the inquiry into SafeWorkSA has commenced. This seems to be an avenue for some of your concerns to be addressed. Perhaps you can tell readers if VOID has made a submission yet or been asked to appear at the inquiry.

  8. My husband was killed in an industrial accident in 1999. SafeworkSA investigated, and safety upgrades were immediately implemented. During the Industrial Court proceedings, it was brought to light that some of these \’upgrades\’ had been removed, after it was proven that they were \’holding up production\’. I understand that businesses need to improve their profits, but at what cost? And why is it that SafeworkSA must give notice of their intention to visit for \’spot checks\’? Totally wrong in my book!

  9. SafeWork SA has provide the following information:

    \”Following this [Salvemini] incident SafeWork SA inspected and issued a number of compliance notices, with the required improvements made. A further inspection of the vessel is scheduled for later this month.\”

    \”The new [Work Health and Safety] laws clarify everyone’s role in providing and maintaining a safe workplace and aim to prevent these sort of technical decisions [re: employment status] being handed down in court.\”

    SafeWorkSA advised that Lee Salvemini was offered counselling services and that this is an established practice. SafetyAtWorkBlog has heard that Lee Salvemini has refused these past offers. (As per the comment below, Lee Salvemini disputes this.)

    Has SafeWorkSA ever considered, or applied, the process of “restorative justice” in cases related to workplace fatalities?

    \”SafeWork SA is bound by the legislative sentencing options under the Occupational Health, Safety and Welfare Act 1986.\”

    Bring on the sentencing options in the new WHS Act which, in Queensland, includes:

    \”adverse publicity orders
    restoration orders
    training orders
    work health and safety project orders\”

  10. On the matter of \”safety procedure\”, this seems likely to be a safety induction. Inductions are one of the most important harm prevention strategies because they set the safety rules of that particular worksite. The induction is intended to provide guidance on how to work safely and not a document for retrospective analysis, but that is common. The situation mentioned above is common but is a clear legislative breach but whether this is relevant to the specific incident on the Fig Tree Bay is debatable.

    The \”bureaucrats\” may need to lift their game but I think often OHS regulators get blamed for inaction when the principal duty of care remains on the employers. Anger at an OHS regulator may be better targeted to specific industry or employer associations who have a more direct relationship with industry stakeholders and members. These industry associations often produce industry safety guidelines in conjunction with regulators. Safety guidelines are of variable quality but can have some legal and legislative standing.

    The painted \”no-go zone\” is mentioned. In OHS, this would equate to an administrative control and should only be done after a rigorous risk assessment process that identifies other possible control measures. It may be that the yellow lines are a \”reasonably practicable control but this would have been analysed by the regulator. Also it is very difficult to retrofit safety to products and illustrates how important safe design principals are and the importance plant safety requirements.

    Whether the \”bureaucrats\” at SafeWorkSA are doing their job or not, I am not in a position to say. Perhaps the inquiry into SafeWorkSA which I believe has already commenced will shine some light on its operations but OHS regulators are not responsible for safety, the employers are and they need to step up to the plate a lot more.

  11. I am so glad you mentioned the Fig Tree Bay accident Kevin. Did anyone mention to you that the Fig Tree Bay and the Jean Bryant were owned and managed by the same group of directors?

    I have a copy of the brief from the Salvemini trial here. Within that is a document from the Fig Tree Bay incident. It was called something along the lines of a \”Safety Procedure\” — it was signed by the employee who was pulled in by his foot. As you know this man survived. The troubling thing here is that when he is shown this so called Safety Document…you know, the one he is supposed to have signed, he tells the investigator that he had never seen this document before and that it was not his signature.

    Apparently that kind of thing happens and nothing much is made of it all because really, what everyone wants is a nice and cosy guilty plea. The real meat gets buried in the paper shuffle.

    You have this all very wrong Kevin. This has nothing whatsoever to do with grief. This has nothing to do with an obsession for justice. It is about a system of terrible deficiencies and inefficiencies and a self indulgent bureaucracy that cannot to see what is right there in front of it.

    If the bureaucrats were doing their job, the dangerous part of that spool on the Jean Bryant would not be sitting over the safe zone right now! Yes, the yellow lines were eventually painted to mark this magical \’no-gone zone\’ – but what Lee has been screaming about since 2008 is that this reel had since been engineered to hold more net and as a result it became larger in diameter. They shifted the reel out by a few feet but no one ever bothered to re-paint this illusive \’no-go zone\’. Now the danger zone is where the safety zone is and frankly, who cares?

    Isn\’t it fascinating that the company was awarded a monetary \’break\’ in their fine because they said that they would fit a safety bar in front of the spool. It\’s in the judgement – please do feel free to read it. Did a safety bar ever go on? No. When Lee Salvemini made the bureaucrats aware of this, the reply from the Minister was that there was no jurisdiction to insist on it. Really? Is this a paper tiger or what?

    If there is an obsession here, it\’s one for well paid people to get off their backsides and do what it is they are paid to do.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.