| Author |
 How QLD WH&S is destroying the dive industry  |
|
Matty Hampster Diver
1200+ Posts
Brisbane
Australia
1568 Posts |
 Posted - 29 January 2009 : 10:45:24 PM
|
WWell charge(s) have been laid in the Richard Neally lost at sea case, and again WH&S approach to managing the dive industry clearly indicates why it is driving the industry to extinction.
The allegation/charge is that the operator failed to manage the risk. If this is the case as reported, WH&S have had to resort to one of the god section of the Work place health and safety legislation to lay charges. Failure to manage risk is an all encompassing section of the act the implies if anything happens the operator is at fault . In most other recent prosecutions they have resorted to finding inane breaches of the code of practice to charge operators using the failure to provide a safe place of work as the basic charge, but in this case they used the grand daddy sledge hammer clause.
To understand how hard it is to defend against this I have quoted the legislation section below , but basically it outlines what a person should do to manage risk, point {1}, defines how you should identify and manage risk, section (2) specifies the order that once a risk is identified the control measure should be developed, section (3) then tells you that even if you do those things the act may tell you do if differently and then section(4) indicates that even if you do all of that, and something bad happens, then doing everything in section (1) and hence section (2) is in itself is not a defense
27A Managing exposure to risks
(1) To properly manage exposure to risks, a person must
(a) identify hazards; and
(b) assess risks that may result because of the hazards; and
(c) decide on appropriate control measures to prevent, or
minimise the level of, the risks; and
(d) implement control measures; and
s 28 30 s 28
Workplace Health and Safety Act 1995
(e) monitor and review the effectiveness of the measures.
(2) To properly manage exposure to risks, a person should
consider the appropriateness of control measures in the
following order
(a) eliminating the hazard or preventing the risk;
(b) if eliminating the hazard or preventing the risk is not
possible, minimising the risk by measures that must be
considered in the following order
(i) substituting the hazard giving rise to the risk with a
hazard giving rise to a lesser risk;
(ii) isolating the hazard giving rise to the risk from
anyone who may be at risk;
(iii) minimising the risk by engineering means;
(iv) applying administrative measures;
(v) using personal protective equipment.
Examples of subparagraph (iii)
redesigning work, plant, equipment, components or
premises
Examples of subparagraph (iv)
training, reasonable hours of work
(3) However, this Act also specifies particular ways in which
workplace health and safety must be ensured in particular
circumstances.
(4) Compliance with subsection (1) does not excuse a person
from an obligation to ensure workplace health and safety or a
particular obligation imposed on the person under this Act.
So here is the heart of the problem for QLD dive operators. In working under the code of practice for diving, you meet the obligations that it indicates, you choose a dive location that is effectively confined in this case, and you lose 2 experienced divers that somehow manage to leave the area and relative safety of the lagoon and get wept away, creating an international media storm, you then get charged with a piece of legislation that it is incredibly difficult to defend against.
The defense of this involves 2 parts, firstly having a documented risk assessment that cover the event and ensuring all crew are up to date on it and perfectly enact it, and secondly that the risk assessment results in actions that are fair and reasonable. Now the definition of fair and reasonable is a sore point. Basically it means if the risk has been previously identified anywhere and that it is published in the public domain, then a professional organization supplying service in that arena should be aware of it and manage it accordingly. Ie judges take direction from work place safety officers on what is best practice and it damn hard to defend against.
So what is the point of the charges? Basically to defend them is a legal nightmare, the cost will be huge, in this case I believe the penalty is 500 penalty points. That means the maximum fine will be $37500 plus costs (assuming the old point cost applies given the timing of the event). Even if they defend it and win, it will still cost them their legal fees, and bank on them being anywhere between 30 and 50 K if Workplace drag this out in court.
So basically its intimidation, roll over accept the charge and move on, or fight it out and even if you win, you lose, and if you lose, then you lose 3 to 4 times the value of what you would pay if you pleaded guilty
Similar events by QLD workplace health and safety officers in recent times include:
-
asking a dive shop to agree to a improvement notice that they failed to adequately manage panic in a case where there was no injury, just a disgruntle diver (shop was conducting a check out dive on a certified but new diver to them, diver panicked and bolted, was managed to surface and back on board, and the dive shop was said to be at fault, as the diver had suffered duress, this on was ongoing last I heard.
- Charging a shop for failing to have a process in place to calibrate pressure gauges and hence failing to provide a safe place of work, after a diver had a heart attack and died back on the boat after a dive (and getting something like $15000 fine for it)
- Charging and fining Mike Ball operations over Tina Watson death, even through the coroner has now indicated it was actually murder, great investigation that one!!!
The fundamental problems here is that recreational adventure sports which are not risk free no matter what you try to do, and do not sit well with the charter of a work place health and safety department, who's rightful goal is zero workplace deaths/injuries.
Diving and other adventure based sports need to be managed and legislated for outside the current WH&S arena. Many actions and responsibilities will be the same between the 2 groups, but at some point the onus for the supply of unlimited care as it now stands of services needs to be revised so in the end of the day operators don't have to live in fear of massive penalties for events that really are often impossible to control 100% when supplying those services, the thought process that says we can make adventure sports 100% safe and yet still market them as adventure activities and attract people is flawed. The fact that most experienced Brisbane based divers i know would prefer to drive to NSW to dive rather the with a local operator is proof of that.
Qld diving is withering at the vine, the current hammer approached used by the Qld government is driving people both locally and internationally away from QLD as a diving destination and the threat of prosecution for trivial breaches in order to bag a prosecution means no right minded business person will invest in diving in QLD
The current model where work places inspectors justification for continued employment is bringing charges and if every time there is an incident in diving they feel compelled to lay charges due to a zero incident rate mentality and to be seen to be doing their job, then diving as an industry will remain an industry that fails to attract new investment and continue to decline in QLD.
Diving when I lived in North QLD was an integral part of the tourist scene along the coast, Now you can travel large distance and not find a dive shop. When I left Arilie Beach and Mackay there where about 8 major dive shops, now days theres lucky to be one. The cost of compliance and constant training of a transient work force to meet ever more difficult work place directives and the constraint threat of industrial charges by a over zealous inspectorate unit have contributed to drive a lot of smaller local operations and even some larger ones out of business. If you dont believe this just look how threads there are here for people looking for operators to dive sections of the qld coast and not being able to find a operator.
The loss of revenue this created and the disincentive for overseas tourists to come dive here, has been devastating to the value of tourism in North Qld and to the community in general. Well done the Government of QLD, you set about making these laws to protect the value of the diving tourist industry and the tool you created is what has destroyed it. Bravo!
Having done 2 business cases in the last 2 years for diving business in qld I know that the killer of one was that the risk of a customer dying by a heart attack in a 5 year time frame and the associated cost of defending and at worst case being fined for a death in a work place exceeding the profit in that time frame for a $800000 investment. No one in their right mind would invest in that environment
The qld government and the minister for industrial relations are the people who need to fix this, for otherwise they will reap the rewards of the economic damage they have sown
Matthew MacLean.
|
Edited by - Matty Hampster Diver on 30 January 2009 07:22:39 AM
|
|
|
dscottflanders
30+ Posts
Townsville
Australia
32 Posts |
Posted - 29 January 2009 : 11:06:24 PM
|
Matthew,
You forgot to add that PADI has now officially expelled the dive instructor involved for what they quote as can only be one of the following reasons;
"Expulsion only results after a PADI Member refuses to implement corrective measures, or when the nature of the complaint is so severe that expulsion is necessary to protect the public or to preserve the reputation of the PADI organization"
scroll down to 'Irwin, Kylie'.....
http://www.padi.com/padi/en/footerlinks/expelInstructors.aspx
Not to mention that the dive company in question is also under investigation for a seperate incident that resulted in a death on thier boat late last year.
Guess two competely seperate investigations by two seperate entities can't be that wrong ...
|
Edited by - dscottflanders on 29 January 2009 11:58:30 PM |
|
|
marekm
Dive-Oz Supporter
Brisbane
Australia
347 Posts |
Posted - 29 January 2009 : 11:47:43 PM
|
Right on Matty, I've been saying this about WH&S for years. Now for a 'hypothetical' question:
If a diver on a charter using a certain rebreather died due to a CO2 hit because the scrubber was not welded up properly, is it still the operators fault at the end of the day. Or will WH&S put the responsibility onto the manufacturer of the rebreather?
Cheers.
-Marek
PS: When can I come by to pick up that scrubber so I can re-weld it properly  ? |
|
|
Matty Hampster Diver
1200+ Posts
Brisbane
Australia
1568 Posts |
Posted - 30 January 2009 : 06:32:40 AM
|
quote:
Originally posted by dscottflanders
Matthew,
Not to mention that the dive company in question is also under investigation for a seperate incident that resulted in a death on thier boat late last year.
Guess two competely seperate investigations by two seperate entities can't be that wrong ...
gentleman was one Jade Huawg a Taiwanese national who died snorkeling. I'll wait for the investigation on that one. Far more people die each year snorkeling than diving in qld.
Matthew |
|
|
Lesley
Dive-Oz Supporter
The Shire
Australia
1253 Posts |
Posted - 30 January 2009 : 06:45:25 AM
|
| Whilever we as individuals are prepared to live in a society based on "I made a mistake, who can I blame?" instead of "I'm a grown up, I take the primary responsibility for my decisions and actions" paternalism will grow and flourish. |
|
|
Jaws
300+ Posts
Mount Martha
Australia
444 Posts |
Posted - 30 January 2009 : 08:45:23 AM
|
| PADI are very quick to wash there hands of any instructor involved in a major incident... |
|
|
Dave Mc
30+ Posts
Brisbane
Australia
84 Posts |
Posted - 30 January 2009 : 09:25:24 AM
|
Matty,
I had a look at the legislation but couldn't work out if section 27A a criminal offence of is it a civil penalty? You would think that a jury given all the facts would be likely to toss this. However, your right $37,500 would get chewed up pretty quickly in legal fees if he does fight it. It is no wonder that very few dive shops in Brisbane operate a boat. Like you say it's great for Northern NSW diving, I hear charter boats just over the Tweed are booming. |
|
|
Matty Hampster Diver
1200+ Posts
Brisbane
Australia
1568 Posts |
Posted - 30 January 2009 : 09:27:12 AM
|
quote:
Originally posted by Dave Mc
Matty,
I had a look at the legislation but couldn't work out if section 27A a criminal offence of is it a civil penalty? You would think that a jury given all the facts would be likely to toss this. However, your right $37,500 would get chewed up pretty quickly in legal fees if he does fight it. It is no wonder that very few dive shops in Brisbane operate a boat. Like you say it's great for Northern NSW diving, I hear charter boats just over the Tweed are booming.
Industrial court, heard in front of a judge only
Matt |
|
|
Namreg58
30+ Posts
Sydney
Australia
134 Posts |
Posted - 30 January 2009 : 11:48:54 AM
|
I'll say it again, these **** knuckles will only lay charges if they know that you can afford to pay. They are not interested in seeing you locked up and it costing them money to do so.
Arrange your business to suit. |
|
|
Dave Mc
30+ Posts
Brisbane
Australia
84 Posts |
Posted - 30 January 2009 : 11:53:48 AM
|
In criminal matters I would usually favour a judge only trial but in this case perhaps not. Let's hope for a fair minded judge.
Early on, I recall their being some criticism of the operator for not raising the alarm quick enough (but I may have this confused). Matty, do you know if this is the crux of WPH&S's case or is it simply as the section suggets " a failure to manage the risk ". |
|
|
Com_Diver89
300+ Posts
Adelaide
Australia
325 Posts |
Posted - 30 January 2009 : 1:37:13 PM
|
The theory is that when you put people into the ocean you stick em there and hope they come back. An idea that was put forward to us while we were doing the first part of our course (part 1 scientific scuba to 30m) was to have everyone attached to a float  . Now this is useless if you want to do swim through's but would work in a similar idea to drift diving.
At the end of the day there is only so much you can do to keep your passengers alive. There has to be some level of common sense of the passenger... a control measure for this would not to let them go diving if you dont think they are up to it
My 2c |
Edited by - Com_Diver89 on 30 January 2009 1:38:01 PM |
|
|
mikism
150+ Posts
Sydney
Australia
177 Posts |
Posted - 30 January 2009 : 5:00:22 PM
|
The Mike Ball incident cited poor supervision of an inexperienced diver.
I think the panic incident that you are talking about involved an inexperied diver who was inadequately supervised. She was part of a group of four divers under the care of an instructor. The instructor did not even assist her, it was a member of the boat crew who got to her first.
Prodive Townsville was fined for providing newly certified divers with faulty safety sausages which were inadequate signalling devices
Are we seeing a pattern here? One of the risks in Queensland is newly certified or inexperienced divers and the industry is not properly managing that risk becuase it seems to figure prominently in a number of incidents. So who is killing the industry: WHSQ which, because it can, prosecutes the same incident again and again, changing only the names or The Industry which struggles to see out a year without killing or seriously injuring a member of the public?
I found it a real drag diving in Qld because of the restrictive requirements but I still found myself babysitting newly-certified divers on a number of occasions because the staff only paid lip-service to adequate supervision. I am surprised that there are not more incidents given the number of divers and the half-****d, follow-the-rules-but-only-just attitude.
I would be disappointed in the regulatory authority if it did not tighten the screws on an industry which leaves members of the public at sea and kills them on a semi-regular basis. |
Edited by - mikism on 30 January 2009 5:01:38 PM |
|
|
Dave S
Dive-Oz Supporter
Warm, sunny Melbourne
Australia
2610 Posts |
Posted - 30 January 2009 : 5:35:05 PM
|
quote:
Originally posted by mikism
The Mike Ball incident cited poor supervision of an inexperienced diver.
What, so now operators are obligated to supervise their customers 24/7 just in case they decide to murder each other?
quote:
Prodive Townsville was fined for providing newly certified divers with faulty safety sausages which were inadequate signalling devices
http://www.deir.qld.gov.au/publications/workplaceprosecutions/2007/workplace/myrmidon-corp/index.htm
"Considerations for prevention:
The company has since reviewed the high-visibility signalling devices supplied to certificated divers and now provides flag-style devices rather than inflatable safety sausages."
Yeah, great ****ing idea that is. 
quote:
One of the risks in Queensland is newly certified or inexperienced divers and the industry is not properly managing that risk becuase it seems to figure prominently in a number of incidents.
Boat operators should have no obligation to nanny certified divers. A certification is supposed to indicate that the person doesn't need supervision. If newly certified divers are drowning with unacceptable frequency, then perhaps there's a problem with certification standards.
|
|
|
Rick
KISS RB pilot #109
QLD
Australia
479 Posts |
Posted - 30 January 2009 : 5:55:33 PM
|
quote:
[i]Originally posted by Matty Hampster Diver
Lucky you have your own boat Mat.
You can go when you want what time you want & with who ever you want. |
|
|
Matty Hampster Diver
1200+ Posts
Brisbane
Australia
1568 Posts |
Posted - 30 January 2009 : 5:58:19 PM
|
quote:
Originally posted by mikism
The Mike Ball incident cited [i]poor supervision of an
I would be disappointed in the regulatory authority if it did not tighten the screws on an industry which leaves members of the public at sea and kills them on a semi-regular basis.
unfortanetely what you have said is a myth, the death rate per dive is probably the lowest in the world in QLD industry, and I hearing that the department might be in the process of ackwonledging that. given that te number fo dives per year in qld is now be recognized at around 2.5 mil annually and the number of deaths diving (outside of murder) over the last 5 years in commerical operations I think is 2, it's damm low. snorkelling is the real killer
|
|
|
mikism
150+ Posts
Sydney
Australia
177 Posts |
Posted - 30 January 2009 : 6:55:32 PM
|
quote:
Originally posted by Matty Hampster Diver
quote:
Originally posted by mikism
The Mike Ball incident cited poor supervision of an
I would be disappointed in the regulatory authority if it did not tighten the screws on an industry which leaves members of the public at sea and kills them on a semi-regular basis.
unfortanetely what you have said is a myth, the death rate per dive is probably the lowest in the world in QLD industry, and I hearing that the department might be in the process of ackwonledging that. given that te number fo dives per year in qld is now be recognized at around 2.5 mil annually and the number of deaths diving (outside of murder) over the last 5 years in commerical operations I think is 2, it's damm low. snorkelling is the real killer
So which is it? Is the industry being "destroyed" by an over-zealous regulator or is it thriving and safe? 2.5mil customers a year does sound like a lot to me and that death rate sounds low, even if we discount the as yet, unconvicted murderers 
We are not talking about a regulator that has 'just turned up' at places of work though are we? We are talking about incidents in which members of the public have either died or been abandoned at sea which have caused the authorities to get involved. One could say that their involvement is no accident... |
Edited by - mikism on 30 January 2009 6:57:17 PM |
|
|
andz
300+ Posts
Brisbane
Australia
487 Posts |
Posted - 30 January 2009 : 8:31:02 PM
|
Don't worry Matty, the credit crunch will kill tourism and the QLD gov will be bankrupt and WH&O will not exist, and then we get back to men been men and woman been men......people rule use your vote wisely.
Watson will be elect PM, all whales will be saved.
All this in two years
quote:
Originally posted by Matty Hampster Diver
quote:
Originally posted by mikism
The Mike Ball incident cited [i]poor supervision of an
I would be disappointed in the regulatory authority if it did not tighten the screws on an industry which leaves members of the public at sea and kills them on a semi-regular basis.
unfortanetely what you have said is a myth, the death rate per dive is probably the lowest in the world in QLD industry, and I hearing that the department might be in the process of ackwonledging that. given that te number fo dives per year in qld is now be recognized at around 2.5 mil annually and the number of deaths diving (outside of murder) over the last 5 years in commerical operations I think is 2, it's damm low. snorkelling is the real killer
|
|
|
Karl
150+ Posts
Rockingham
Australia
183 Posts |
Posted - 30 January 2009 : 9:51:32 PM
|
The other thing to consider is what type of investigation was conducted. For a criminal investigation the facts have to be proven beyond a reasonable doubt, where as with an administrative investigation they only have to be proven against the balance of probabilitiy - which is a lot harder to defend against and therefore easier to prove that something went wrong (there are also othe differences but these are the main ones).
It would be also interesting to see if Workplace offered up reccommendations on how the incident should of have been handled in the first case - which is also good investigative practice; however, its easy to critise and lay charges its a lot harder to make reccomendations to help fix a problem.
I'll think I'll stick to my diving here in WA thanks - and for the exotic I'll go to Thailand or Bali etc - its a lot cheaper and less hassels.
Karl |
|
|
marekm
Dive-Oz Supporter
Brisbane
Australia
347 Posts |
Posted - 31 January 2009 : 12:10:28 AM
|
quote:
Originally posted by mikism
So which is it? Is the industry being "destroyed" by an over-zealous regulator or is it thriving and safe?
mikism,
That depends on your definition of diving. If you consider going to about 3m max depth in a roughly 50m by 50m roped off section of a coral lagoon with a single tank of air so you can look at a desolate coral bommie in filthy water* the definition of diving, then by all means diving is 'safe' and thriving in Queensland.
Cheers.
-Marek
*Example taken from what I saw at Lady Musgrave Island. |
|
|
Andy Del
Dive-Oz Supporter
KISS #130
Australia
2395 Posts |
Posted - 31 January 2009 : 06:57:09 AM
|
quote:
Originally posted by Dave S
Boat operators should have no obligation to nanny certified divers. A certification is supposed to indicate that the person doesn't need supervision. If newly certified divers are drowning with unacceptable frequency, then perhaps there's a problem with certification standards.
Ha! Spot on! 
Anyone notice that the (at least PADI) way to certify a diver has gone from a good 4-5 day course to a 2 day quick splash after passing a multiple guess on-line questionaire?
Far from being a course that met educational benchmarks for content, timing, repetition and testing, nowadays it's all about cram them in, give them a card and on-sell the next 'certification'.
How anyone can take it all in and remember, let alone practice and gain 'mastery' of all the skills on an OW course in two days, both in a physical motor-skill manner and to fully assimilate cognitively, is beyond me.
Better still, PADI actively cousel (or they did in my experience) instructors from teaching above or past their standards, as they will not cover you for doing so.
The bottom line - get more bums through the door, take their money and setup a dependency so they stay put and keep on forking out the $$$. Bleed them dry, because when that cash cow runs out, there will be another sucker to take their place.
If a few pople die, the cost of payouts / defending the cases will be outweighed by the profits made in the first place. |
|
|
MarkK
Dive-Oz Supporter
Sydney
Australia
344 Posts |
Posted - 31 January 2009 : 07:37:25 AM
|
Now what were the words of that Eagles song...
"Lets kill all the lawyers, lets kill 'em tonight..."
Most of this is driven by the who can I blame for my misfortune mentality, ably supported and encouraged by ambulance chasing lawyers keen to make a buck and knee jerk nanny state legislators and politicians.
What ever happened to the sensible idea of classifying some past times such as diving, parachuting etc as adventure sports and having legislation put into place where people accept the associated risks and prohibiting legal claims in the event of an accident.
Why would anyone dive or worse want to run a diving business in Queensland? |
|
|
How QLD WH&S is destroying the dive industry |
|
Topic Locked
