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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. Continue reading “The Salvemini court saga illustrates many problems with prosecutions, justice and care”

Law reform does not prevent harm, only compensates for it

Josh Bornstein is a media-savvy lawyer with Maurice Blackburn who has gained some prominence on the matter of workplace bullying. A week ago Bornstein spoke at a Legalwise seminar in Melbourne Australia and he has yet to stop running on his topic of discussion – “Disproving the seven myths about workplace bullying”. Today he released a video of his presentation on the Maurice Blackburn YouTube channel. The speech from the seminar is HERE.

Lawyers advise that words and statements are very important. Documents and presentations are deconstructed for nuance and alternate interpretations. Context is also vitally important to determine why something was said when it was said and why it was said. These tools are equally useful for Bornstein’s presentation.

Continue reading “Law reform does not prevent harm, only compensates for it”

South Australian WHS laws get closer

Australian OHS discussion forums have been buzzing with the passing of the model Work Health and Safety (WHS) bill through the South Australian Parliament. SafetyAtWorkBlog has been advised that the WHS Bill has yet to go to Committee stage which then requires a third reading. Some engaged in South Australian politics still believe the WHS Bill will fail to become law.

However the focus should not only be on the WHS Bill as there were other OHS matters discussed in Parliament on 6 September, such as workplace bullying.

Second Reading

The Second Reading Speech (page 2069) by Russell Wortley on 6 September 2012 includes some comments of note. Below are a couple of extracts:

“There has been a lot of fearmongering about the effects of these laws. I want to assure honourable members that these fears are misguided and, sadly, often based on misinformation from lobby groups with a particular self-interest in seeing this legislation defeated.”

“…if we do not modernise our laws now, the scope of legal workplace safety protections will continue to be limited by the employer/employee relationship and existing ambiguities will remain. Honourable members need to understand that if the bill is not passed, a South Australia worker will have lower standards of safety than other workers in other states and territories across Australia.”

Of particular note is that Wortley tables (pages 2077-2079) the Housing Industry Association‘s table of increased costs from the new WHS laws. Continue reading “South Australian WHS laws get closer”

Shit safety campaign launched in Australia

On September 5 2012, the Tasmania Minister for Industrial Relations, David O’Byrne launched a new campaign to encourage businesses to prepare for new Work Health and Safety laws. The name of the campaign is “OH S…”.

O’Byrne’s media release explains the campaign:

“OH S… is the understandable gut reaction of any worker, manager or business owner when they hear there’s been an accident in the workplace… This campaign uses that first reactionary moment to try and promote how workplaces can be proactive on work health and safety.”

It is reminiscent of the famous line by Bill Cosby when describing a car accident and a driver’s reaction:

“First you say it, then you do it”.

The wisdom of this campaign is questionable. There could be a range of responses created in the media by various comedians, all to do with safety and shit, such as:

“Make the job safe, move that shit”.

“Don’t be a shithead with safety”.

“The top three priorities of this company is Safety First, Safety Second and Safety Turd”.

Bringing shit into the concept of safety is a challenge and could offend some of the old-guard that sees OHS as sacrosanct. But it could be that such an advertising strategy for workplace safety is necessary. Continue reading “Shit safety campaign launched in Australia”

The Australian Government looks to apply “above-the-line” safety to quad bikes

At the end of August 2012, Australia’s Minster for Workplace Relations, Bill Shorten, released a discussion paper on quad bike safety. The intention of the discussion paper is a:

“…calls for submissions on potential improvements to quad bike safety to reduce the alarming rate of quad bike fatalities and injuries….

The comments received will be discussed at a one day forum between all levels of government, farming organisations, unions, industry and community groups to be held in October 2012.”

The paper is fairly thin on details and is certainly not like other discussion papers which present a current state of knowledge or present a set of circumstances that comments are wanted on. But most of the quad bike safety research is readily available on the internet so, perhaps Minister Shorten is acknowledging this reality and the intelligence of those interested in this issue. The paper poses the following questions: Continue reading “The Australian Government looks to apply “above-the-line” safety to quad bikes”

Safety culture change through a regulatory-based market mechanism

In late August 2012 at a breakfast seminar, the Director of Construction Code Compliance, Nigel Hadgkiss outlined the 1999 Victorian Code of Practice for the Building and Construction Industry, which complements a 1997 National Code, and recently released implementation guidelines being imposed on many Victorian construction companies by the Liberal Government. The Code and implementation guidelines are ostensibly about industrial relations or, as Australia is increasingly calling them, workplace relations but do contain some interesting safety elements.

An intriguing element of the Code and guidelines is the introduction of a workplace culture through contract obligations and how this may affect workplace safety.

Hadgkiss stated, according to a copy of his presentation, that

“Where a party tenders for public work called for after 1 July 2012, the party is required to comply on any subsequent privately funded work.”

This quote means that any company that applies for a Victorian Government contract, of specific costs and other criteria, must comply with the Code. Any client is entitled to impose their own contractual conditions. The obligation that “the party is required to comply on any subsequent privately funded work” means that even if the contractor or party fails to win the contract it tendered for its management of any subsequent project, even one from non-government funding, must also comply with the Code.

One of the four priority elements of the Code is occupational health and safety, so OHS requirements will spread from principal contractor, or tenderer, to contractor, sub-contractors and sub-sub-contractors like a virus or an “ITI”, an industry-transmitted infection. Continue reading “Safety culture change through a regulatory-based market mechanism”

WHS harmonisation status

Things seem to have been quiet on the harmonisation of OHS laws in Australia so it is worth to check the latest status of these laws. Australian law firm, Freehills, recently provided clients with an update (not yet available online) in which they described the process as now operating in two stages, almost splitting Australian jurisdictions.

According to the client update:

“As of 1 January 2012, the Model WHS Laws have commenced operation in:

Queensland,

New South Wales,

the Australian Capital Territory, and

the Northern Territory…..
Continue reading “WHS harmonisation status”

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

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Law reform does not prevent harm, only compensates for it

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South Australian WHS laws get closer

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Shit safety campaign launched in Australia

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The Australian Government looks to apply “above-the-line” safety to quad bikes

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Safety culture change through a regulatory-based market mechanism

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WHS harmonisation status

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