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)
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.