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Andrea Madeley (admin)
MEDIA RELEASE ~ 12th AUGUST 2011
SafeWork SA Inspection Practises 2011 (The Review by Mr Stuart-Crompton)
The report released by Minister Wortley yesterday outlines recommendations made by Robin Stuart-Crompton and on the surface those recommendations do address some important concerns that were aired by the Coroner in February 2011.
VOID has been asking for a more efficient and speedier investigation /prosecution for years and that hasn’t happened. VOID met with SafeWork SA in 2006 outlining the importance of communication with families and what happened? Those people we were liaising with have either moved on or their positions were made redundant – quite recently in fact.
It’s difficult to remain objective regarding the rationale in response to the explanation SafeWork SA has given for the tardy responses in audits on dangerous equipment.
In his findings, the Coroner raised concerns that it took SafeWork SA more than 6 years to implement and audit on Horizontal Borers and this only at the time of the inquest.
Page 22 Section 51 b)
inspectors in the 2004 Manufacturing Team had no evidence indicating that horizontal borers were the source of significant injuries to a large number of workers in the manufacturing sector;
Page 58 Para 3 “At the time of the Madeley incident, SafeWork SA inspectors were confronted with a tragic event involving a specialised item of plant which was used in an unknown number of workplaces across the state. The inspectors had not encountered an incident of this type previously and there was no relevant data to indicate that this equipment was causing injuries to workers. The Team had no evidence before it at that time which indicated that horizontal borers were the source of significant injuries to a large number of workers in the manufacturing sector.
Possibly the most depressing revelation for me personally was what appears to have been a complete lack of lateral thinking. The horizontal borer is essentially a large machine that has a fast rotating shaft or spindle – similar dangers apply to lathes, milling machines and radial drills, to name a few. So what? That’s the best the department could come up with was to do nothing?
Please feel free to peruse the SAIRC findings in ‘Baker V Jean Bryant Fisheries an Arthur Markellos’ and a strikingly similar incident only 14 months later on another shark boat controlled by the same people, ‘Hillman V Figtree Fisheries PL’.
I can summarise this into a few words.
A massive shark spool crushed and killed Giacomo Salvemini in November 2005. The controlling company was charged and prosecuted under the OHS&W Act. Just 14 months after this fatality, another fishing vessel owned by the same people managed to drag another employee into its shark spool. The saving grace here is that the unfortunate deckhand on the Figtree Bay was caught by his foot this time. He survived but with serious injuries that have left him unable to work.
It’s evident today why SafeWork SA failed to inspect the other boats and specifically, the other shark spools owned by these same directors – let alone setting its focus beyond that.
There’s little point questioning these concerns now because it is apparent that just like the Horizontal Borer, a commercial shark reel was not considered a dangerous piece of equipment that injured lots of workers. This explains perfectly why a Stanley knife in a packing area might have a higher resource of attention than that of a massive machine that might be quite deadly but does not inflict harm on a regular basis.
It’s difficult for broken-hearted families to look forward with optimism when confronted with the kind of rationale that has been aired in this report. The recommendations are good, but our experiences to date tell us to proceed with a hopeful mind but accept the likelihood that we may be arguing these same issues in 10 years’ time – happy to be proven wrong.
Andrea Madeley – President / Founder
JEAN BRYANT FISHERIES and ARTHUR MARKELLOS V NEIL BAKER – APPEAL REFERRED TO FULL BENCH 1st AUGUST 2011
In the South Australian Industrial Relations Court yesterday (Monday, August 1st 2011), the tragic death of shark-boat deckhand Giacomo ‘Jack’ Salvemini (pictured) was once again in the spotlight as the judicial appeal process began.
The company ‘Jean Bryant Fisheries Pty Ltd’ and legal co were absent from the court. The family had been notified that an appeal on the conviction and sentencing against the company had been dropped. However the appeal process was not completely interrupted with the second defendant, skipper Arthur Markellos standing firm on his application.
Ah, the wonders of our justice system. It offers those accused of crime many opportunities to appeal a decision that is not to their liking. All one really needs is more dollars to fund the appeal and of course a willing legal mind who will take a reasonable chunk of those dollars.
Jack Salvemini was killed in November 2005 – that clearly is almost 6 years ago. This deceased worker had a family that loved him dearly. For these almost 6 years this family has been dragged along through this process with no option.
What I found rather incredible was that the ‘legal system’ kind of forgot to consider compensation for Jack’s siblings. Their victim impact statements were read out during the hearing. We’re talking about a fairly modest amount of money here but it is within the court’s power to award a small amount of compensation to family who have endured hardship as a result of someone else’s negligence. Something went a tad wide of the mark in that the matter of compensation seemed to have become confused by the court.
So let me get this right. The convicted crime can be appealed if the defendant believes there has been an error but when the court errors, there’s not really any avenue to correct a mistake?
See now I had this crazy idea that it would have been perfectly appropriate that this ‘forgotten matter of compensation’ be brought to the attention of the Judges of the Industrial Court for consideration. The appeal was lodged by the defendant (and at one point both defendants) so in effect it seemed a good opportunity to make a wrong right again.
Madam, the rules of law are quite clear! I am told evidently one cannot be expected to be penalised higher during the course of an appeal than the court they were just sentenced in.
Note to self: Must stop applying such LOGIC to matters relating to JUSTICE!
Read this first: Safety Institute expulsion raises questions about fairness.
So what this tells me is that the ‘peak body’ of OHS professionals (SIA) has a list of ‘Codes’ that members are required to follow.
I happen to agree with John Lambert. I think those at the controls of any organisations should be able to prove exemplary conduct. It reflects back onto a very basic principle of ‘lead by example’ as opposed to, ‘Do as I say and not as I do…”
In my mind, it isn’t even so much ‘what’ people do, or which ‘codes of conduct or ethics’ go unheeded, it’s the quiet and gradual impact this has on others. People often mirror the behaviour of those that preside over them whether it’s ‘bending’ ethical standards or adhering to them like glue. In other words, if the intellects at the ‘decision making centre’ demonstrate a disregard for its own policies, there’s a much greater chance those around and below will have little respect for those policies.
The focus here is of course ‘safety’ in the workplace and the by-product of it all points to the same problems faced in so many workplaces. No wonder employees are reluctant to make too much noises about safety issues. What hope do they have of maintaining safe employment when at the top of the heap, our professional safety bodies are being foreshadowed with questions over integrity and conflicts of interest?
Well… I do believe I hear a brick wall calling yet again.
IAN MARKOS V QUIN INVESTMENTS & NIKOLAI KUZUB
It’s hard to fathom but once again we have not one but three grieving families looking down the barrel of many, many more months of legal delays until this matter is finalised. The frightening aspect in all of this is the uncertainties of where it will all end up.
As much as we can make out (and that’s never easy for laymen participating in a lawman’s world) the result of today’s decision is not all bad but it certainly was not good either.
QUIN INVESTMENTS and NIKOLAI KUZUB appealed their guilty convictions but that aspect of the appeal was unsuccessful for both. This is obviously the good news.
Their appeal against the ’cause’ of the explosion – that being that friction and a subsequent heating issue within the poorly maintained and worn ‘ribbon blender’ actually caused the explosion – has been rejected by the Full Court Judges. So the crux of that is that they agree with QUIN and KUZUB, that this concept of causation was not proven beyond reasonable doubt meaning that this overrules the decision of Magistrate Ardlie who believed the evidence did support that theory ‘beyond reasonable doubt’.
Where it all ends up from here is anyone’s guess.
What appears to be a matter for concern now is that as a result of this appeal decision and Full Court ruling, the penalties imposed on both defendants are entitled to be reduced. The argument being that the sentencing Magistrate would have calculated (for want of a better word) a portion of the fine from his finding that causation was proven. Thus that portion of the fine would need to be removed.
The question is, who would then hear this case – the Full Court or Magistrate Ardlie? If I understand it, these defendants have a choice on that. Given what we heard today, their preference was certainly not to go back to the sentencing magistrate….but I don’t know whether they’re all that chuffed with going before the Full Court either. It does seem clear that they don’t have the option of choosing another single magistrate.
You know the issue I can see is that the fine of $95,000, while right up there, is not really that much higher than we’ve seen in other matters of serious negligence. There’s about $20,000 or so variation. This is of course still under the old fine regime where the maximum of $100,000 for a first offence was applicable. Mind you, I can’t help but wonder where all the room to move lies. We are talking about a Major Hazard facility here with seriously deficient safety protocols and maintenance programs. Further to that, the consequence of those deficiencies ultimately resulted in multiple deaths.
Of course there is always the chance that the Crown may seek leave to appeal to a higher court and if that happens, and the Crown is successful, then the penalties would remain.
And…no matter which way you cut and dice it, the families – who have no power to control the course – are going to be the ones doing it toughest in the end. L
COURT TIME AND DETAILS
Please be advised that at 12.50pm
on Friday 8th July 2011 the FULL COURT of the South Australian Industrial Relations Commission will be handing down its decision of details in the conviction and sentencing in the matter of IAN MARKOS V QUIN INVESTMENTS and NIKOLAI KUZUB. This decision related to an APPEAL that was lodged by both defendants and was heard in front of the three Magistrates on February 9th 2011.
A RECAP ON THE CASE …
The shocking explosion at the Gladstone Munitions factory on May 9th 2006 that claimed the lives of Matthew Keeley, Damien Harris and Darren Millington was eventually bound for the South Australian Industrial Relations Court with charges laid under the good ol’ reliable (but somehow barely adequate) Section 19 of the OHS&W Act (Failing a Duty of Care).
On the 1st September 2010, defendants QUIN INVESTMENTS and NIKOLAI KUZUB were both fined $95,000 for their roles in neglecting important safety and maintenance issues at the plant.
Having attended just a few days of the trial and hearings and I must say, it was hard to sit through.
I couldn’t help but wonder how the families of these three men held it together so well. Personally, this time I didn’t carry the burden of Mother, Father, Wife, Child or sibling so it was easier to take this in from an outside perspective. That said and still, the way the defence’s lawyer Grant Germein directed speech to the family made me uncomfortable so I shudder to think how that all must have felt for them. One could easily be forgiven for thinking we were sitting on some Hollywood TV set amid a dramatic court room scene. The problem was this wasn’t fake ‘anything’ – the horrible detail of death, devastation and blaze attitudes to safety were absolutely real.
(LEFT) A SNIP FROM AN ARTICLE – THE ADVERTISER Page 26 (Feb 19 2010) – “GLADSTONR CASE LIKE KGB PROBE”
Suggesting the Magistrate was being emotionally blackmailed because the families have been ‘produced’ was nothing short of insensitive and unfair.
For those of us that have experienced the loss of a loved one followed by that long path into the justice system, well … no one has to ask you to be there. The family of those 3 boys attended that trial and every hearing since because they were (and still are) hurting. They went because they have suffered a tragic loss that did not make sense. It’s the need for answers that draws us. It’s also the need to ensure that we don’t let lawyers or the justice system forget for one second why they are there. Lives were lost forever – they had every right to be there.
To suggest it was at the ‘State’s Expense’ is simply not true. That statement is not only inconsiderate, it demonstrates a lack of will to acquire facts to ensure innocent people are not traumatised unnecessarily.
It would not have taken much effort at all for a simple probe into who paid, how they travelled and where they stayed. One would then find that they travelled the long distance on their own dime. They took time of work at their own personal expense. Their accommodation was assisted by friends – not the ‘state’. None of this was that hard to verify… and yet it appeared in the paper and these people had little option but to wear the stigma.
Who knew words uttered by lawyers in a court of law could be so abhorrently wrong – and for the most part, people hear it then read it and form an opinion whether it is the truth or not.
So tomorrow, with some hope, the FULL COURT will come back with a decision these three families desperately need so they can put this legal rubble behind them and start a little healing.
AND JUST ON A SIDE NOTE:
While on the topic of the small town of Gladstone – I came across these job placement adverts and at the same time, this article in relation to the same company –
MORE BANG FOR BUCK from the Northern Territory News.
Hopefully the importation of cheap dynamite (if that is in fact what is being imported) and the future storage and handling of any explosives will only happen if and when all licenses and permits are properly upheld.
Importing cheap anything is always a concern if it competes directly against the OHS and safety guidelines Australian manufacturers are lawfully required to follow.
When it comes to explosives, whether storing, transporting or manufacturing – I think Magistrate Ardlie summed it up rather nicely when he outlined in relation to housekeeping attitudes on the site QUIN INVESTMENTS and NIKOLAI KUZUB oversaw, “You were not manufacturing marshmallows out there…”
It wasn’t that many years ago I sat much farther to the right than left. Left? Isn’t that where we see all the clowns with long beards, dreadlocks and a joint in their mouth preaching world peace and … rhaa rhaa rhaa! Ahh well, they do say time is a great teacher.
Yes, there was a time the union movement created no reaction for me. My attitude changed somewhat a few years after Danny was killed. I had to let go of old ideas and concede that maybe, just maybe Danny would still be alive if where he worked had a union presence. Perhaps someone beyond those there might have picked up on what these young apprentices were doing and made some noise? Maybe…maybe…
Of course, all of this is based on nothing more than vague possibilities…but it seems fairly logical. If there are more eyes on safety – surely this would only be a good thing – right? I felt the union movement had made some important changes from the days that saw them lose their status (and of course influence) which I also believe was to some degree, self-inflicted. I sensed their focus was shifting more toward safety and a little less on the whole issue of money.
Then why am I sitting here, once again doubting myself and these ideals?
So, I came across this article: The Herald Sun – “Workers ordered back to Victorian desal” (June 17th 2011)
I read the words ‘Desalination Plant’ and ‘Industrial Action’ and I think, YEAY! GO THE UNIONS!
Hang on, she cried, as she reads on… and now there’s a sinking feeling when it becomes clear what this is all about.
I think back to the desalination plant here in Adelaide. I think back to some of the comments made by the CFMEU after Brett Fritsch was killed and those made since his death.
I think for most of us who followed the tragedies unfold from the Adelaide Desalination Plant (APD) from July 2010 would by now have shaped an opinion that the principle of allowing an organisation to regulate itself is very dangerous practise indeed.
I have come to know the mothers of Brett Fritsch and Allen O’Neil – two men that died as a consequence of this project. My heart aches for each of them and their families. It just didn’t make sense to me how it was on such a massive budget, we were hearing about so many safety short cuts being taken.
I now reference this article in the Southern Times Newspaper 15th February 2011
“DIFFERING VIEWS ON DESAL SAFETY”
THE consortium building the $1.8 billion Adelaide Desalination Plant says it has not received one formal safety complaint – despite one death, numerous injuries and claims workers raise concerns every day. “I am not aware of any formal safety complaints from the union or their representatives,” an Adelaide Aqua spokeswoman said in an emailed response last Friday.
I guess it stands to reason if you have workers raising safety issues and they are promptly removed (as has been quoted in the media), the domino effect of that is pretty obvious. Who’s going to step up to the plate, risk his job / income?
Following on from that, I note the CFMEU had this to say:
But the peak workers’ union – the Construction, Forestry, Mining and Energy Union (CFMEU) – says this is at odds with on-the-ground experience. Assistant state secretary Darren Roberts said workers raised safety complaints with the on-site Occupational Health Safety and Welfare (OHSW) committee every day.
Now if I were a betting person (which I’m not) I would be tempted to read between the lines and put money on a guess that the CFMEU are frustrated to the hilt. Okay, it’s a rather diplomatic form of venting that frustration but nonetheless, it sounds to me like things are less than ideal when it comes to safety on site at the release of that article in February 2011.
In South Australia, during the construction of the Desalination Plant, it was evident that the CFMEU had serious concerns about safety and unrealistic time constraints on the project. Whilst these issues may have been raised at committee meetings, clearly the message was hitting deaf ears. We know that because people got hurt – badly hurt – killed!
My attention now turns to the ABCC (The Office of the Australian Building and Construction Commissioner) and in particular this section under Occupational Health and Safety in the construction industry.
Employees have the right to stop work if there is an imminent risk to their health and safety. If this occurs, employees must follow any reasonable direction of their employer to perform other work that is safe and appropriate for them.
I understand the conflict and frustration of the construction unions here. It is not fair-work to have one rule for construction workers and one for everyone else. It is especially important that construction workers are afforded the same level of rights to safety in an industry that is notoriously dangerous. But in my mind, that falls a long way from removing all rights to safety.
Recognising the dangerous time constraints and work schedules at the Adelaide Desalination Plant Project before Brett Fritsch was killed; did the CFMEU resort to any outward action to cease work until this matter was addressed? If that ever happened, I can’t find where it did. I’d suggest the answer is, no.
Sometime down the track and now with the legacy of the death of one of its own members, did the CFMEU tender a submission to the Select Committee probing into the safety issues at the Adelaide Desalination Plant? There is no tendered document that I can see listed. Again I am going to have to assume that the answer is, no.
And to both of those questions, I have to ask why not?
So yes today it bothers me that it seems the union is becoming increasingly arrogant as it gains more momentum.
It bothers me a great deal that the CFMEU found the conviction to launch Industrial action for redundancy pays at a Desal plant interstate whether legal or not. That suggests to me that the CFMEU will do what it believes in, when it needs to.
So my final question – What the hell happened here in Adelaide? Where was the conviction to protect workers?
The aide-mémoire in all of this will last a life time for the families of the dead worker, and how bloody tragic that all the warning bells were screaming away and no one made nearly enough noise until it was too late.