CEO Message: Impacts of new safety requirements on the Commercial Fishing Sector
This week I’d like to talk about a critically important issue which each and every fisher should be aware of. And that’s safety and training. Please listen all the way through because there is some extremely important information here that you most definitely need to be aware of.
Over the past 20 years, safety has become a higher community focus across all aspects of our lives and this drives governments to implement new rules. Seat belts, air bags and child restraints in cars, high-viz work clothing, scaffolding on building sites, hard hats, management of chemicals, roll-cages on tractors, helmets for farm quad-bikes and safety demonstrations on Qantas flights.
As a workplace, a fishing vessel or aquaculture operation is no different. Some in industry may see this increased focus as an unwanted impost whilst others see it as long overdue.
Either way, the shift to greater safety and training focus is the new reality for our industry.
On top of this general shift in community focus, the fishing industry has been under pressure from the tragic loss of a number of our kindred souls from our boats over recent years and the general community no longer tolerates people going to work in the morning and not coming home at night – or returning home missing a few digits.
All state governments, along with the Commonwealth, have signed up to the new standard safety requirements and please appreciate that we simply couldn’t stop these even if we were to try. Yes we can negotiate to slightly amend a few little bits on the edges to suit our industry – and we have successfully done this – but the other 99.9% is seen as standard safety practices and simply not negotiable.
The mining, oil & gas and farming industries have already followed the nation’s industrial sectors to bring in extremely stringent safety requirements – and now it’s our turn.
The community sees fishing operations as higher risk workplaces – operating away from populated areas, with restricted working areas, ropes and machinery, slippery floors, unpredictable seas rolling the boat around and splashing water all over the place, gaffs and sharp knives aplenty, and bitey creatures snapping at our ankles. Whichever way you look, it’s not an easy task to make it fully safe.
And the new safety requirements may not always make things easier to get the fishing job done as freely as in the past – and there will be undoubtedly all sorts of unintended consequences to deal with.
In the main, fishing boats have had their surveys done and safety management plans developed over recent years, so well done to everybody involved. But this is just the start, there’s more stuff coming our way and it will be a continuous process from now on.
You should all be aware that since New Years’ Day there’s a whole raft of new Australian Maritime Safety Authority (AMSA) requirements which need to be adhered to. Depending upon your boat size and where you operate you may well need to have float-free EPIRBS aboard or wear a lifejackets (PFDs) at all times or fit safety rails or wear harnesses. It’s super important that you check this out ASAP following the links on the WAFIC website. When it comes to dealing with compliance inspectors, “sorry mate I didn’t know about that” is no longer a defence. And yes we know that EPIRBs have been difficult to locate, but we at WAFIC can point you in the right direction if your local shop can’t help.
If you look at what has happened to other industries like mining, everybody now has to wear high-viz clothing, safety boots, helmets and safety glasses and gloves – and go through extensive training, inductions, pre-start safety meetings every day and they have to undertake 5 risk assessment steps before undertaking any task. There are warning signs all over the place, yellow hand rails and stickers here and there and sign-in, sign-out requirements. The level of record-keeping is simply enormous and very onerous.
Over many decades the unions have pushed hard on safety and the government has fully backed them. The result has been a dramatic improvement in safety culture and a steady decline in accidents and deaths on mine and construction sites.
The community expects similar results in other industries.
While the safety requirements for fishing will be necessarily different to mining, you can bet your bottom dollar that the volume and intensity of safety requirements, procedures and policies will be at a similar level.
While for some of you this will be second nature and documenting the process may have a level of nuisance value, the situation across the industry as a whole has unfortunately been far from perfect to date. So now is the time to step up!
Over the past year, across Australia, there have been 30 workplace deaths in agriculture, forestry and fishing – compared to just 9 from mining and petroleum from roughly the same number of workers. In other words, the primary industries have a death rate which is about triple that of the resource industries.
The farm deaths come from the usual high-risk factors including vehicles, quad bikes, tractors, animals, guns and drownings. The injuries come from slipping, lifting, falling and being hit by livestock or machinery. Farms with older equipment and older farmers were proved to be more at risk compared to farms with the latest equipment and younger operators – the stats and facts make for very concerning reading.
In this regard it could well be a similar situation within fishing.
Government has been working to educate the fishing industry on the new safety requirements for several years. They are now saying that everyone should be ready to go. Worksafe inspectors won’t care if you haven’t had the time to design your safety management system, undertake a safety training program for your crew or been unable to book a marine electrician to check and upgrade the wiring. They won’t care if you had a mechanical break down and needed to test the drive belts without replacing the safety guards.
If something goes wrong and you and your fellow owners are considered to be liable, I need to soberly advise you that the full force of the law is heading your way.
This is not the old law that applies a warning or a fine of $50,000 is somebody is injured or dies. This is the new WA industrial manslaughter laws which will come into effect mid-2021.
The new laws include a fine that could send you bankrupt. The laws have the capacity to send you to jail with a maximum penalty of 20 years’ imprisonment for an individual or directors and a fine of $10 million for a corporate entity.
If you have a tax-friendly business arrangement which has you and the missus and your 21 year old son and 23 year old daughter as Directors – and the kids are studying at Sydney Uni – well guess what, they are still potentially liable if they did not act accordingly as a Director to satisfy themselves the fishing vessel or aquaculture workplace was safe and all the policies, procedures and training were being adhered to – even though they live interstate.
Even worse, wait for this, the new laws will make it illegal for insurance companies to indemnify businesses against monetary penalties imposed under the new WA workplace health and safety laws. So you can’t insure yourself to avoid the consequences.
And then it goes even further – the workplace health and safety legislation defines health as both ‘physical and psychological’, so there’s a whole range of other potential liabilities being dished up to employers and business owners which may not become apparent for years down the track.
The changes that the WA state government has introduced may have been aimed at the St George’s Terrace executives overseeing big construction and mining companies, but they now go all the way down the chain to the owner of a small fishing business or the family farm.
Those who are unprepared and haven’t put a safety management plan in place will find, that long after the immense shock of tragically losing a work colleague, the legal and personal drama will unfold over many years with the ready ability to potentially end generations of hard work – ultimately leaving the fishing business and family with absolutely nothing.
The drama will commence on the same day of the accident, with both the Police, AMSA and Worksafe arriving to begin their investigations and will roll on month after month, taking physical and mental toll as well as stacking up lawyer’s bills all the way.
A couple of examples: a level 1 (low level) offence starts at a $50,000 fine for a sole trader and jumps to a $450,000 fine for a company. For a level 4 offence it is a $550,000 fine plus 5 years jail for a sole trader and for a company director it rises to $2.7 million.
If they are able to prove a charge of industrial manslaughter then it’s 20 years in jail and a $10 million fine. You will also need to say goodbye to the house and boat as remember there will be no insurance dollars allowed to cover the fines.
We have already seen how far the courts will go in other states with a $12 million fine in 2016 on a Tasmanian farmer over a quad bike accident – for not providing any training and neglecting to enforce the wearing of a helmet. Yes that’s $12 million dollars.
Here in WA we will potentially soon have Australia’s toughest work safety laws on fishermen, through the combination of AMSA marine safety requirements and Worksafe workplace industrial manslaughter requirements.
To show how serious the WA government is, they have added $12.9 million to the WorkSafe budget to employ and resource an additional 21 inspectors, bringing the total number to 120.
These inspectors will be targeting farmers and fishers through increased inspections, the issuing of on-the-spot improvement notices, prohibition notices (to stop-going-to-sea), prosecution actions, verbal directions or any combination of the above.
Every fishing business will need to ensure (and document) that it is taking all reasonable and practical steps to identify the hazards workers are exposed to, comprehensively reviewing the physical and mental health risks, implementing practices to manage the risk and then training crew in the operational practices. Regular in-situ practice drills for emergency procedures will be critical especially when new crew come aboard.
So you most certainly need to undertake an independent safety check and audit – the clock is ticking and the stakes are rising. We implore you to protect yourself, your family and your employees – and do everything you can before the new state worksafe laws click into action in June 2021. But remember the new AMSA marine safety requirements are already in place right now.
It is a no brainer that you need to ensure the safety of your workplace – but now you also have to have formal induction and training for employees as well as accurate record keeping systems, policies, procedures and appropriate signage.
It’s not cheap, it’s not easy – but it’s obviously a whole lot better than losing your life or that of a crew member and a lot cheaper and easier than fighting the court case and paying the fines – and infinitely better than going to jail.
Let’s face it – safety in the fishing industry is of paramount importance. I’d implore you to take it seriously – and please share this podcast with others who may not have heard it.
The WAFIC website has all the necessary links to information to assist you to meet the new safety laws. This includes templates for hazard and risk analysis, safety management systems as well as safety equipment requirements. Contact details for AMSA and Worksafe WA are also available.
Before I go, I’d just like to acknowledge the assistance provided to me in getting this presentation together – firstly from Brett McCallum who does a huge amount of work behind the scenes supporting WAFIC – and therefore supporting fishermen – in regard to safety. His ongoing efforts are greatly appreciated.
And also to the head of WAFarmers Trevor Whittington who has taken a leading role on behalf of farmers and fishers trying to secure some sensible outcomes regarding industrial manslaughter. WAFarmers and WAFIC and other industry groups like the Master Builders all locked in together to negotiate as a block with the state government – but they simply wouldn’t budge. You may recall a tragic workplace death at Curtin University last year – it happened during the same week the legislation was going through parliament – and MPs who were looking at making some amendments then decided not to.
So what I have spelt out to you today is an uncomfortable reality.
Please stay safe – and please keep your business safe too.