The SA Industrial Relations Court has heard two 28-year-old men who died at sea in a fishing boat tragedy were offered “a feed of fish” in return for their work as deckhands.

Today B&A Fisheries Pty Ltd was fined and ordered to compensate the victims’ families after pleading guilty to breaching the Occupational Health, Safety and Welfare Act 1986 in that it failed to provide plant in a safe condition and failed to provide safe systems of work.

Industrial Magistrate Stephen Lieschke recorded a conviction and imposed a nominal fine of $200,000 that would have been reduced by 20 per cent to acknowledge the company’s guilty plea, cooperation, and contrition. However, due to the company’s diminished financial standing, Magistrate Lieschke reduced the fine to $20,000 plus court costs of $1143.

The company must pay a total of $20,000 compensation divided between the mothers of both victims ($5,000 each) with $10,000 going to the partner and young son of one of the victims. This is the maximum amount of compensation allowed under s13 of the Criminal Law (Sentencing Act). Neither of the victims was entitled to workers compensation payouts.

B&A Fisheries must also publish at its own expense, notices in The Advertiser and five prominent regional newspapers outlining to the commercial fishing industry the importance of wearing personal flotation devices and the dangers of unstable craft.

SafeWork SA prosecuted the company after investigating the circumstances behind the sinking of a shark fishing boat in the Gulf of St. Vincent off Stansbury in September 2008.

Adam Nicolai and Justin Hellyer died when the 7.5 metre vessel they were aboard foundered and sank in rough weather. The skipper and owner of the vessel, Andrew Pisani, survived after swimming several kilometres to shore.

The court was told SafeWork SA uncovered a number of deficiencies in the work environment:

The boat was effectively unregistered.

• The boat was inherently unstable due to the addition of a heavy reel and inboard motor.
• No-one on board was wearing a lifejacket or Personal Flotation Device when the boat was swamped.
• Some of the lifejackets were non-compliant; others were recovered still in their plastic wrapping.
• The EPIRB rescue beacon that could have and should have been deployed was stowed within the bow.

Complicating the investigation was the casual nature of the working relationship. The court was told that Mr. Nicolai and Mr. Hellyer joined Mr. Pisani as deckhands aboard the boat on the evening of 28 September in exchange for a “feed of fish” as payment. Nevertheless, this was still sufficient to define them as employees under the Act.

Delivering his penalty decision today, Magistrate Lieschke said the risk of death by drowning was entirely foreseeable:

“B&A Fisheries’ failures resulted from a casual approach towards the stability of the
vessel, and in relation to a foolhardy and reckless approach to the wearing of life
jackets at night in offshore waters in a small vessel…”

SafeWork SA said the fishing industry needs to take heed of this tragedy and the warning sent by the court.

“Via the penalty imposed, which includes court-ordered publicity, the message is clear that the safety of workers at sea and the seaworthiness of their workplaces must never be taken for granted,” said Acting Executive Director, Bryan Russell.

“Work at sea has many inherent dangers, but these can be managed provided the right attitude as well as the right policies, procedures and precautions are in place.

“Since August 2010, SafeWork SA has been working with the fishing industry on an OHS Improvement Program to address its injury frequency rate – but the lessons from this case should serve as a powerful warning to the industry of the terrible price that complacency at sea can extract.”

For answers and advice on workplace health and safety and the relevant laws, call SafeWork SA’s telephone Help Centre on 1 300 365 255. To report serious incidents and injuries in the workplace call 1 800 777 209