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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-17 Daily Xml
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SAFEWORK SA

The Hon. R.I. LUCAS (14:37): I seek leave to make an explanation prior to directing a question to the Minister for Industrial Relations on the subject of SafeWork SA.

Leave granted.

The Hon. R.I. LUCAS: Yesterday, SafeWork SA issued a press release saying that last week they had laid charges under the Occupational Health, Safety and Welfare Act against Ferro Con (SA) Pty Ltd, which was the crane company involved in an incident on 16 July 2010 at the Adelaide desalination plant which led to the death of a worker. These charges were laid just prior to the expiration of the two-year statute of limitation under the OHS&W Act.

I have been advised that Ferro Con (SA) Pty Ltd went into liquidation on 29 April 2011 and that it is widely known that there are restrictions on what actions can be taken against companies in liquidation. For example, under section 471B of the Corporations Act, and I quote:

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

Put simply, I am advised that this means that SafeWork SA could not validly take action against Ferro Con (SA) Pty Ltd unless they had first sought leave of either the Supreme Court or Federal Court to do so. I am further advised that SafeWork SA did not comply with section 471B of the Corporations Act and did not seek leave from either the Supreme Court or Federal Court. I am also advised that insurers for Ferro Con (SA) Pty Ltd, and possibly other parties, have already raised this problem with SafeWork SA. Members will note that the two-year statute of limitations has now expired. My questions to the minister are:

1. Did SafeWork SA comply with section 471B of the Corporations Act; and, if not, why not?

2. Has this problem been raised with SafeWork SA by the insurers of Ferro Con (SA) Pty Ltd, or any other party and, in particular, has any party advised SafeWork SA that the charges have not been validly laid in accordance with the law?

3. When was the minister advised of this particular issue?

4. Can the minister assure this house that either incompetence or negligence by him, or his agency, will not mean the charges cannot be pursued against this company?

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (14:41): Members will be aware that this matter is currently before the courts and, in light of that, I am constrained to some extent in what I can say. There has, however, been considerable media commentary on a range of issues which go to procedural and policy matters that I am able to address.

First, why did it take two years? I think it is important that we understand why it took two years. This was a complex investigation involving a considerable amount of technical assessment. Members will be aware that the desalination plant is a highly complex construction activity involving a wide variety of specialist services. When an incident of this magnitude occurs it is critical that investigators interrogate every single aspect of the work activity. SafeWork SA conducted a thorough investigation into this fatality, ensuring that all avenues of inquiry were comprehensively investigated.

SafeWork SA has obtained numerous statements and sought specialist advice on up to nine separate and specialised work activities. This included geotechnical surveys of the site, the operation of the crane and all aspects associated with the use of the sling. Every item of specialist advice required careful assessment and interchange between the investigating inspectors and the specialists. These are not processes that can be rushed and members will appreciate that every detail required careful consideration.

Naturally, the finalisation of the prosecution brief relied upon the expert advice of the Crown Solicitor, and these are matters which, again, required time and careful attention. These are not matters that can or should be rushed. Did the investigation take a long time? Yes, it did; but members of this chamber would agree that the investigation needed to be done accurately and thoroughly, and rushing matters such as this is not helpful to any party.

These questions could be asked. Why were other companies not prosecuted? Should any other companies have been prosecuted, or have they slipped through the net? Again, SafeWork SA conducted a thorough investigation into this fatality, ensuring that all avenues of inquiry were completely and comprehensively investigated. All findings of the investigation were provided to the Crown Solicitor for consideration. It is the Crown Solicitor who advises which avenue of prosecution should be pursued. SafeWork SA and the Crown Solicitor have my full confidence in discharging these duties on behalf of the South Australian government.

In regard to the statute of limitations two-year time frame, the two-year time frame is a nationally applied standard for prosecutions of industrial matters in recognition of the fact that many investigations in an industrial setting are both legally and technically complex. It is too simplistic to assign arbitrary time limits without due regard for the nature of the investigations that are being undertaken. Any change in this time frame would put South Australia out of step with legal standards in other jurisdictions and potentially compromise the finalisation and determination of the legal process.

Should members hold reservations about the process applied by SafeWork SA, they may wish to consider how matters might be dealt with in a more timely manner by other parties. To this end, members may want to consider the model used in New South Wales, where trade unions have the right to prosecute for offences under the work health and safety legislation. This would allow union officials to activate and manage a prosecution independent of the regulator. I am quite open to any consideration by the opposition, if they are so concerned about this, of such a proposal.

SafeWork SA has previously engaged the consultant Robin Stewart-Crompton to review internal structures and procedures within the agency to highlight strategies for improvement. SafeWork SA has established a working committee dedicated to enacting the recommendations of this report, and this demonstrates that SafeWork SA is committed to improving its operations wherever possible as an ongoing process.

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