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Appendix III: OHS Act notices, proceedings and undertakings 2009 -10

In 2010–11 the following notices were issued

  • No ‘Removal of Plant and Substances Notices’ (section 44 of the OHS Act) were issued.
  • Twenty-nine ‘Do Not Disturb Notices’ (section 45 of the OHS Act) were issued to enable Comcare investigators to preserve accident sites for inspection and examination during their investigations.
  • Twenty-six ‘Prohibition Notices’ (section 46 of the OHS Act) were issued to address circumstances that were believed to pose an immediate threat to the health and safety of people.
  • Thirty-six ‘Improvement Notices’ (section 47 of the OHS Act) were issued by investigators to assist duty holders in improving their compliance with the legislation, where non-compliance had been detected.

In 2010–11 the following ohs civil enforcement proceedings were commenced

Comcare v Commonwealth of Australia (Chief of Army)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Brisbane Registry) on 4 May 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by the Chief of Army. A Comcare investigation determined that on 24 September 2009 an Army Cadet (aged 15) suffered breathing difficulties after consuming a ‘hot box’ meal which contained satay and traces of peanut while on an Army Cadet Camp. The cadet’s allergy to peanuts was known to the ADF and those in charge of the Cadet Camp, prior to the incident occurring.

Comcare v Australian air Express

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Sydney Registry) on 27 April 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by Australian air Express. A Comcare investigation determined that on 28 May 2009 an Australian air Express contractor sustained serious personal injuries when a metal roller door fell on him from a height of four metres at the Australian air Express Domestic Airport Facility at Mascot, NSW. As a result of the incident the contractor sustained a fractured skull, a severed right ear lobe, sore ribs and was hospitalised.

Comcare v Commonwealth of Australia (Chief of Defence Force)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Sydney Registry) on 15 April 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by the Chief of the Defence Force. A Comcare investigation determined that on 14 February 2010 an Australian Defence Force Academy (ADFA) Officer Cadet was thrown from a Rigid Hulled Inflatable Boat, during ADFA Year One Adventure Training, at Lake Burrenjuck, NSW. The Cadet was struck on the lower back by the boat’s propeller and suffered deep lacerations, requiring emergency surgery and hospitalisation for several weeks, followed by further surgeries and physiotherapy.

Comcare v BIS Industries Pty Ltd

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 6 April 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by BIS Industries Pty Ltd. A Comcare investigation determined that on 29 July 2009 a BIS employee, while assisting to clean an iron ore chute in Whyalla, fell 1.5 metres from a platform above the chute. In doing so, the employee fell into the chute and sustained a serious back injury. Emergency services were required to extract the employee from the chute which was a confined space. The employee may never again regain full function of their back.

Comcare v Transpacific Industries Pty Ltd (Acid Burn Incident)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 25 February 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by Transpacific Industries Pty Ltd (TPI). A Comcare investigation determined that on 16 December 2008 a TPI employee sustained a burn injury to their chest and stomach after sulphuric acid they were vacuuming was released from a vacuum hose onto their face and chest while they were disconnecting the hose from the vacuum truck. The TPI employee was wearing Personal Protective Equipment (PPE), however it was not properly fastened at the collar at the time of the incident.

Comcare v Transpacific Industries Pty Ltd (Foot Crush Incident)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 25 February 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by TPI. A Comcare investigation determined that on 21 August 2009 a TPI employee sustained a crush injury to their right foot (and subsequent amputation of their big toe) when they rested their foot on an opening in a machine used to compact plastic rubbish into bales. The opening was created for maintenance of the machine prior to TPI taking control of the machine and the facility it was located in. TPI failed to identify the hole or the risks it posed.

Comcare v Transpacific Industries Pty Ltd (Hand Burn Incident)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 25 February 2011, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act. A Comcare investigation determined that on 16 September 2008 a TPI employee sustained a serious hand injury when their hand and arm was caught in an unguarded ‘Hot Stamping Machine’ at a TPI facility in Airport West, Victoria. TPI were aware of the risk posed by the unguarded plant but had not taken action to rectify it at the time of the incident.

Comcare v Transpacific Industries Pty Ltd (Fatality)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Perth Registry) on 23 December 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by TPI. A Comcare investigation determined that on 2 September 2009 a TPI employee was killed while cleaning a mineral processing vessel at the Alcoa Alumina Facility in Wagerup, WA. A drain leg at the top of vessel became blocked and the TPI employee went to get a hose head fitting to clear the blockage. This employee was later found deceased under the outlet chute of the vessel, with injuries consistent of having fallen into and through the outlet chute on the vessel.

Comcare v John Holland Pty Ltd and John Holland Group

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Perth Registry) on 20 December 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by John Holland Pty Ltd (JH) and John Holland Group (JHG). A Comcare investigation determined that on 19 March 2009 at the Newman Mine in WA, a JH employee while working on a partially completed structure, fell 10 metres through a section of unsecured grid mesh, suffering fatal injuries. Two dangerous occurrences of similar incidents occurred shortly before the fatality.

Comcare v Australian Postal Corporation

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Brisbane Registry) on 13 December 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by the Australian Postal Corporation (APC). A Comcare investigation determined that on 17 July 2008 at APC’s Toowoomba Mail Centre a 72 year old APC contractor, suffered the amputation of his right leg below the knee when struck by a reversing forklift which was being operated by another APC employee.

Comcare v Post Logistics Pty Ltd (Thumb Amputation)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Sydney Registry) on 27 October 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by Post Logistics Pty Ltd. A Comcare investigation determined that on 14 August 2009 at Warehouse 7 of the Post Logistics complex in NSW, an employee amputated the top of his right thumb when it was caught on a ‘nip point’ on a ‘semi-automatic pallet wrapper’. The ‘nip point’ was present due to damaged guarding on the machine.

Comcare v Post Logistics Pty Ltd (Toe Fracture)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Sydney Registry) on 27 October 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by Post Logistics Pty Ltd. A Comcare investigation determined that on 31 March 2008 at Warehouse 9 of the Post Logistics complex in NSW an employee received a fractured toe when a colleague ran over the employee’s foot while using a forklift.

Comcare v Customs & Border Protection

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 6 August 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by Customs & Border Protection. After a Comcare investigation determined that on 17 December 2008 a Customs employee whilst at work at Adelaide International Airport, slipped on glue on a concrete floor. The glue had been laid on the floor by a contractor who was engaged by Customs to lay floor tiles. The Customs employee suffered a serious personal injury.

Comcare v Australian Rail Track Corporation

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Adelaide Registry) on 30 July 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 17 of the OHS Act by Australian Rail Track Corporation (ARTC). A Comcare investigation determined that on 20 September 2008 two members of the public were driving along an ARTC private access road at night when their vehicle struck a concrete pillar on a bridge over the Wakefield River. As a result, their vehicle fell some seven metres off the unprotected edge of the bridge on the dry river bed, killing both occupants.

In 2010–11 the previously commenced ohs civil enforcement proceedings were continued

Comcare v Subsee Explorer Pty Ltd

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Brisbane Registry) on 23 December 2009, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 18 and 19 of the OHS Act by Subsee. A Comcare investigation determined that a Department of Immigration and Citizenship (DIAC) Immigration Response Vessel (IRV) Malu Sara departed Sabai Island on 14 October 2005. At this time the Malu Sara had two DIAC employees and three civilian passengers on board. While en route to Badu Island, the Malu Sara became lost and commenced taking on water. Contact with the Malu Sara was lost on 15 October 2005. Of the five people on board, only one deceased person has since been located.

The IRV was owned by DIAC and had been manufactured and supplied to DIAC by Subsee Explorer Pty Ltd (Subsee).

This is the first time Comcare has taken action against a manufacturer for an alleged breach of section 18 and section 19 of the OHS Act.

Comcare v John Holland Rail Pty Ltd

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Melbourne Registry) on 22 August 2008, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 18 and section 19 of the OHS Act by John Holland Rail Pty Ltd (JHR). A Comcare investigation determined that a JHR contractor sustained a serious crush injury to the hand while operating an item of plant, which later resulted in the amputation of a finger. The incident occurred on the St Kilda Light Rail Reconstruction Project in June 2007.

In 2010–11 the following ohs civil enforcement proceedings were concluded

Comcare v Australian Postal Corporation

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Melbourne Registry) on 3 June 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 of the OHS Act by APC. A Comcare investigation determined that on 27 May 2008 an Australia Post contractor, engaged as a motorcycle postal delivery officer (PDO), sustained fatal injuries when her motorcycle collided with another vehicle in Palmerston, Northern Territory.

The Comcare investigation also revealed that the PDO’s motorcycle, along with five others at APC’s Palmerston Delivery Centre, were unroadworthy and unsafe at the time of the accident (although the condition of the PDO’s motorcycle did not, in this instance, contribute to the accident) and APC’s pre-ride motorcycle inspection procedures had not been effectively implemented at the Palmerston Delivery Centre during late 2007 and early 2008.

On 31 March 2011, Justice Kenny of the Federal Court declared that APC had breached section 16 of the OHS Act and imposed a civil penalty of $95 000.

Comcare v AFP Federal Agent

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Canberra Registry) on 12 February 2010, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 21 of the OHS Act by a AFP Federal Agent. A Comcare investigation determined that a Federal Agent unintentionally discharged a service firearm in an open-plan office in AFP headquarters on 9 September 2008.

On 31 August 2010, Justice Stone of the Federal Court declared that the Federal Agent had breached section 21 of the OHS Act and imposed a civil penalty of $3000.

This was the first time Comcare has taken action against an individual for an alleged breach of section 21 of the OHS Act.

Comcare v Commonwealth of Australia (Department of Immigration and Citizenship)

Comcare filed civil enforcement proceedings in the Federal Court of Australia (Brisbane Registry) on 24 December 2009, seeking a declaration of contravention and imposition of a pecuniary penalty for an alleged breach of section 16 and section 17 of the OHS Act by DIAC. A Comcare investigation determined that a DIAC IRV Malu Sara departed Sabai Island on 14 October 2005. At this time the Malu Sara had two DIAC employees and three civilian passengers on board. While en route to Badu Island, the Malu Sara became lost and commenced taking on water. Contact with the Malu Sara was lost on 15 October 2005. Of the five people on board, only one deceased person has since been located.

On 2 December 2010, Justice Collier of the Federal Court declared that DIAC had breached section 16 and section 17 of the OHS Act and imposed a civil penalty of $242 000.

In 2010–11 the following enforceable undertakings were accepted

Customs and Border Protection Service

On 21 March 2011, Comcare accepted an enforceable undertaking from Customs and Border Protection Service (Customs) in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking followed an investigation by Comcare into an incident which occurred on 17 December 2008, when a number of Customs employees were testing passports in an area that was closed to the public as it was undergoing renovations for the installation of SmartGate passport reading modules. Contractors engaged by Customs were gluing carpet tiles to a concrete floor immediately adjacent to where the Customs employees were working. A Customs employee accidentally stepped on some glue, which had been spread on the concrete in preparation of laying a carpet tile. The Customs employee slipped forward, landed on her arms on concrete, and sustained a small fracture in each arm.

The enforceable undertaking was a legally enforceable commitment by Customs and was accepted by Comcare as an alternative to pursuing civil proceedings. It committed Customs to improve its existing OHS management procedures and mitigate OHS and safety risk in construction and maintenance contractor engagement and management.

Comcare will continue to monitor compliance with the undertaking for its duration which expires on 20 March 2013.

Telstra Corporation Limited

On 5 May 2011, Comcare accepted an enforceable undertaking from Telstra Corporation Limited (Telstra) in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking follows an investigation by Comcare into an incident which occurred on 31 January 2008, where a visually impaired member of the public fell in an unguarded Telstra pit and received multiple injuries.

The enforceable undertaking is a legally enforceable commitment by Telstra and has been accepted by Comcare as an alternative to pursuing civil proceedings. It commits Telstra to undertaking three projects consisting of: a comparison of the current pit guarding design and application against worlds best practice; consultation with Telstra contractors to identify opportunities for improving contractor compliance; and public consultation on the efficacy of guarding design.

Comcare will continue to monitor compliance with the undertaking for its duration which expires in May 2012.

In 2010–11 the following enforceable undertakings are continuing

K&S Freighters

On 26 February 2010, Comcare accepted an enforceable undertaking from K&S Freighters Pty Ltd in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking follows an investigation by Comcare into an incident which occurred on 3 December 2007, when a K&S Freighters’ employee suffered major crush injuries during a truck loading operation. The enforceable undertaking is a legally enforceable commitment by K&S Freighters and has been accepted by Comcare as an alternative to pursuing civil proceedings. It commits K&S Freighters to undertaking a substantial project to improve the safety of loading and unloading procedures for transport vehicles. The undertaking commits K&S to working with subject matter experts and industry stakeholders to develop a Loading and Unloading Exclusion Zone Safety Project (LUEZ). The LUEZ Project is to be completed over six phases, resulting in the development and publication and dissemination of best practice related to loading and unloading procedures.

Comcare will continue to monitor compliance with the undertaking for its duration which expires on 1 March 2012.

Australian Defence Force

On 4 June 2010, Comcare accepted an enforceable undertaking from the Australian Defence Organisation (military and civilian) (ADO) in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking follows an investigation by Comcare concerning the use of hazardous substances at ADF and Department of Defence (DOD) workplaces.

The enforceable undertaking is a legally enforceable commitment by the ADO and has been accepted by Comcare as an alternative to other enforcement options. It commits the ADO to develop and implement a comprehensive consistent and inclusive hazardous substances management system across the whole organisation. The ADO entered into this undertaking to not only meet, but exceed compliance with the regulations concerning the duties of an employer in relation to the use of hazardous substances. ADO has established a Hazardous Chemicals Project Management Board to assist with meeting the terms of the enforceable undertaking.

Comcare will continue to monitor compliance with the scheduled actions of the undertaking for its duration, which expires on 4 June 2012.

In 2010–11 the following enforceable undertakings were completed

Asciano Services

On 3 December 2007, Comcare accepted an enforceable undertaking from Asciano Services Pty Ltd (Asciano) in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking followed an investigation by Comcare into an incident which occurred on 28 November 2007, when a crane operator was loading a container on to a train wagon. The driver of the locomotive caused the wagon to move forward, resulting in a container on the wagon coming in contact with the container suspended by the crane, this then caused the crane to fall on its side. No one was injured in the incident.

The enforceable undertaking was a legally enforceable commitment by Asciano and was accepted by Comcare as an alternative to pursuing civil proceedings. It committed Asciano to audit its terminal procedures, address deficiencies in its communication systems, and implement and maintain a system relevant to the safe operation of plant.

Comcare undertook to monitor compliance with the undertaking for its duration, which was completed on 17 August 2010.

Australian Postal Corporation

On 11 January 2008, Comcare accepted an enforceable undertaking from the APC in relation to an alleged failure to observe its duties under federal workplace safety laws.

The undertaking follows an investigation by Comcare into an incident which occurred on 12 November 2004, when an APC employee was seriously injured in a motorcycle accident while performing delivery duties.

The enforceable undertaking is a legally enforceable commitment by the APC and has been accepted by Comcare as an alternative to pursuing civil proceedings. It committed the APC to working with the Monash University Accident Research Centre (MUARC) to design and conduct a significant research study to provide for substantial and sustainable improvements in the safety of motorcycle delivery operations. The undertaking also involves implementing measures to address any work practices and organisation safety climate factors identified in the study as contributing to the incidence of motorcycle-operations-related injuries. Comcare undertook to monitor compliance with the undertaking which was completed on 6 April 2010.

Aboriginal Hostels Limited

On 5 May 2010, Comcare accepted an enforceable undertaking from Aboriginal Hostels Limited (AHL) in relation to an alleged failure to observe its duties under the OHS Act.

The undertaking followed an investigation by Comcare into an incident which occurred on 12 July 2007, when the night attendant performing his duties at a hostel in Townsville had difficulty with the use of a goods lift. The lift became stuck and the attendant tried to free it by kicking it with his left foot. This action resulted in the lift falling on his leg. He suffered lacerations to his leg and was treated at the Townsville Hospital.

The enforceable undertaking was a legally enforceable commitment by AHL and was accepted by Comcare as an alternative to pursuing civil proceedings. It committed AHL to providing OHS training to hostel staff, undertaking plant maintenance, maintaining plant records, and arranging two audits aligned with the terms of the enforceable undertaking. Comcare undertook to monitor compliance with the undertaking for its duration, which was completed on 18 May 2011.

John Holland Rail

On 28 August 2009, Comcare accepted an enforceable undertaking from JHR in relation to an alleged failure to observe its duties under federal workplace safety laws.

The undertaking follows an investigation by Comcare into an incident which occurred on 25 August 2007, when a JHR employee suffered a finger-crush injury from a work-related incident.

The enforceable undertaking is a legally enforceable commitment by JHR and has been accepted by Comcare as an alternative to pursuing civil proceedings. It commits JHR to making a number of mandatory improvements to workplace safety, including strategies relating to training and supervision; conducting audits of key sites; improving risk management processes; and implementing a Rail Safety Business Plan.

Comcare undertook to monitor compliance with the undertaking for its duration, which was completed on 16 February 2011.