SafeWork SA, Workplace Fatalities - Adjourned debate

Legislative Council
Wednesday November 1st 2017

SafeWork SA, Workplace Fatalities

Adjourned debate on motion of Hon. T.A. Franks:

That the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation inquire into and report on SafeWork SA prosecutions into South Australian workplace fatalities since 2010, with particular reference to the death of Jorge Castillo-Riffo.

(Continued from 12 April 2017.)

The Hon. R.I. LUCAS (20:51): I am disappointed that the government is not going to speak on this particular issue. I was interested to hear what the government's position would be, given the various statements the Premier has made on the steps of Parliament House and in various other fora in relation this issue—

The Hon. T.A. Franks: Indeed.

The Hon. R.I. LUCAS: Indeed, and in various other fora. I notice that the Hon. Mr Ngo was listed to speak but is now not speaking so—

The Hon. D.W. Ridgway: No show.

The Hon. R.I. LUCAS: No show. Let me then address the motion that has been moved by the Hon. Tammy Franks. The details of a number of workplace fatalities have been highlighted not only by the Hon. Ms Franks but also by SafeWork SA and, indeed, by grieving and affected families of injured workers on a number of worksites in recent years. The Hon. Ms Franks' motion does refer to one particular fatality, but her motion refers to fatalities generally.

The CFMEU and others held a rally outside Parliament House in April 2017, and Premier Weatherill stated there would be a review into the failure of all these SafeWork SA prosecutions in the case of all the workers who had died in recent years in South Australian workplaces. There was a review conducted; SafeWork SA conducted its own review, and then there was some debate and argument about whether or not it would be released. Ultimately some recommendations were released, but I am sure the Hon. Ms Franks is in a position to inform the council as to whether or not the full report has ever been released. I have to say that I am not actually aware of that.

The report was explicit in noting that it looked at process issues, procedural issues, rather than reviewing the individual circumstances of particular cases. I do not believe that is the impression that people who attended the rally outside Parliament House had when the Premier indicated there would be a review. As I was not there, the Hon. Ms Franks and others are probably in a better position to know what impression the Premier gave to grieving families, the union representatives and others as to what the review would cover and whether that was different to what actually occurred in the end or not.

The review made a number of findings; we have been told there are 18 recommendations. Again, the government has indicated that there has been a steering group formed to oversee the implementation of those recommendations. This recommendation is that the standing committee of the parliament, which has purview of these particular areas, would have a look at this particular issue. The precise wording is:

…that the Parliamentary Committee on Occupational Safety, Rehabilitation and Compensation inquire into a report on SafeWork SA prosecutions in South Australia…

So, the Standing Committee of the Parliament that has responsibility in these particular areas would have a look at these particular issues. Our party room has discussed this issue, and we are not prepared to support the motion. In doing so, we indicate that we do not believe that it will be possible for a parliamentary committee to retry or rehear individual cases. Clearly, people who give evidence to the committee will be able to talk about individual cases within a summary or a report of how the process has either worked or failed, what the strengths or weaknesses of a particular process were, and where things might be improved.

Certainly, in supporting the motion, our Liberal members—and I am not sure what their current work commitments are, to be frank, but I know they have been doing a lot of work in a couple of particular areas they are about to report on—would be approaching it from the viewpoint of trying to see where the deficiencies (if there are deficiencies; let us go in with an open mind) were in the system and to get a fuller explanation as to why certain prosecutions did not proceed. Once the details are provided, there might be very good, strong legal arguments as to why sensible, competent people decided that there was little prospect of a successful prosecution.

We certainly take the view that every workplace injury or death is not only regrettable but much more than that: one needs to look at the lessons that might be learnt from what went wrong. If someone has been negligent, the full force of the law should be brought to bear. That is certainly our viewpoint, anyway. We go into it with an open mind that says that because a worker is injured it does not necessarily mean that somebody—an employer, in particular—has been deliberately negligent, or has constructed a set of circumstances, or has been indifferent to the working arrangements of individual workers on their worksite.

There might be very well-intentioned workers who have genuinely sought to do all they can, and you can have a genuine accident or, equally, you can have actions taken by individual workers that are contrary to the established workplace safety guidelines. All those options are possible. It is clearly possible that some employers are negligent and have not done what they should have done, but it is also possible that some workers might not have done what they should have done in terms of workplace safety procedures. In the middle, it is also possible that everyone has done the best job that they could have been expected to do, but that in the end there has been an accident—one of those one-in-a-million accidents—that ultimately no-one was going to be able to prevent.

That is our view as a party. We are open to the notion that whatever we can do to improve workplace safety is a good thing. No-one wants to see a worker injured or killed. No-one wants to see a grieving family lose a loved one. That is certainly the perspective that we bring to the debate, but we also bring to the debate the fact that there can be many reasons and explanations for workplace injuries and deaths.

We need to be open to accepting that it is possible that there are varying reasons for workplace injuries and, on occasions, varying either individuals or industry groups who might be culpable or responsible for a workplace injury or, even worse, a workplace death. I conclude on behalf of members by saying we will support the motion, but our members will approach any particular view, if it is successful—passed and referred to the committee—from the perspective that we are not going into it to retry or rehear particular individual cases.

We want to look at the processes that can be informed by the details of individual cases, that can be informed by what went wrong with individual cases, that can be informed by working out why, in the end, certain prosecutions did not proceed and getting a legal explanation as to why the view was that it would never be successful. I think if the committee can do some work down that path, we will all be better informed, and we can then all have a fresh look at whether or not procedures and guidelines need to be changed, practices need to be changed or individuals need to be changed within the agency, or indeed whether workplace safety legislation needs to be changed, which is the responsibility of this parliament.

The Hon. J.E. HANSON (21:02): I support the motion that the parliamentary committee upon which I sit—the Occupational Safety, Rehabilitation and Compensation Committee—inquire into and report on SafeWork SA prosecutions into South Australian fatalities since 2010 with particular reference to the death of Jorge Castillo-Riffo. On 11 April 2017, the day before this motion was moved, the Premier announced, as the Hon. Mr Lucas has outlined, a coronial inquest into the death of Mr Castillo-Riffo and a review into the failure of prosecutions involving the death of workers.

A review into the investigation of prosecution arrangements within SafeWork SA for offences under the Work Health and Safety Act 2012 (SA) was conducted by a senior prosecutor from the Office of the Director of Public Prosecutions, and this was finalised in June 2017. The Coroner is to consider the matter of Mr Castillo-Riffo.

Prosecutions under the WHS Act are amongst the most complex types of prosecutions that can be brought. Notwithstanding the complexities, there is room for improvement in the current arrangements for the investigation and prosecution of offences against the WHS Act. The review made 18 recommendations for change, which are available on the SafeWork SA website. A steering committee chaired by SafeWork SA's executive director has been established to implement recommended changes.

While it may be viewed as duplicative of the parliamentary committee to now undertake an additional review, given the complexities in this area, the government is happy, and I am more than happy, to support this reference to the committee, as any constructive outcomes that contribute to improvement in this area are welcome. I look forward to bipartisan support for those recommendations.

The Hon. T.A. FRANKS (21:04): I would like to thank those speakers who have made a contribution this evening to this debate, and welcome the government's support for this referral, reminding them it is not just the case of Jorge Castillo-Riffo but indeed those fatalities that SafeWork has undertaken to investigate since 2010. The recommendations of the most recent review have not been released in totality. Indeed, only what you would call the executive summary is available to the public, much to the disgust of many who believe that they would be receiving far more information than has so far been released.

An InDaily article referred to this particular matter, referring to, as the Hon. Rob Lucas quite rightly notes, that time the Premier Jay Weatherill made an intervention on the steps of this parliament, back in April this year, with regard to the dispute between SafeWork SA and grieving families where he undertook to order a review of a string of failed prosecutions; indeed, the culmination of the petitions that were sent to the Premier that resulted in that particular April rally. After the rally, Pam Gurner-Hall, Jorge's window, wrote to those who had signed a petition, saying:

Last Tuesday I stood on the steps of parliament and listened with tears in my eyes as the South Australian Premier joined our rally to announce:

A coroner's inquest into Jorge's death.

A review of SafeWork's failure to prosecute employers over workplace deaths.

A review of South Australia's OHS laws and their capacity to protect workers.

That was the understanding of both the petition and the rally of what the Premier had promised to do. As I say, that has not yet come to full fruition, but it does appear that much of the work has been done and it is simply bringing that work to the light of day so that it may be given that wonderful thing called transparency that will restore some trust in the processes in here.

With those few words, I thank those members who have supported and made a contribution and look forward to this referral bringing positive change into our work health and safety practices and indeed seeing far fewer deaths in the future in the state.

Motion carried.

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