Comcare - Australian Goverment
Comcare - Australian Goverment
Putting you first at the centre of what we do. Keeping you healthy and safe at work. Supporting you when you are harmed at work. Ensuring your scheme works and is sustainable.
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Current actions

Civil Proceedings

Enforceable Undertakings

Civil Proceedings

Comcare v Transpacific Industries Pty Ltd (Matter SAD ???/2011)

On 25 February 2011 Comcare initiated civil proceedings in the Federal Court against Transpacific Industries Pty Ltd (TPI) in regard to an incident at the Mandurah Recycling Facility in Western Australia, operated by TPI. The incident occurred on 21 August 2009 when a TPI employee’s foot was crushed in a compression machine. The TPI subsequently had to have the great toe on his right foot amputated.

Comcare alleges that a TPI employee was unnecessarily exposed to the risk due to poor risk assessment of its plant. Comcare is seeking a declaration that TPI contravened s16 of the Occupational Health and Safety Act 1991.

Comcare v Transpacific Industries Pty Ltd (Matter SAD 36/2011)

On 25 February 2011 Comcare initiated civil proceedings in the Federal Court against Transpacific Industries Pty Ltd (TPI) in regard to an incident at the BHP Billiton Olympic Dam mine in South Australia. The incident occurred on 16 December 2008 when sulphuric acid poured out of a vacuum hose onto a TPI employee. The acid burnt the employee when it entered the his acid protection suit at the collar and trickled down his chest and stomach.

Comcare alleges that TPI failed to provide appropriate procedures, training and instruction to its employees, and also failed to adequately risk assess the task undertaken at the time of the incident. Comcare is seeking a declaration that TPI contravened s16 of the Occupational Health and Safety Act 1991.

Comcare v Transpacific Industries Pty Ltd (Matter SAD 35/2011)

On 25 February 2011, Comcare initiated civil proceedings in the Federal Court of Australia (Adelaide Registry) against Transpacific Industries Pty Ltd (TPI) in relation to an incident resulting in a crush and burn injury to a TPI employee operating unguarded machinery at a Victorian site in September 2008.

Comcare is seeking a declaration of contravention of s 16(1) of the Occupational Health and Safety Act 1991 and the imposition of a fine, alleging that TPI breached its employer duties to take all reasonably practicable steps to protect the health and safety of the employee.

Comcare v Transpacific Industries Pty Ltd (Matter WAD 412/2010)

On 23 December 2010 Comcare initiated civil proceedings under s16 of the Occupational Health and Safety Act 1991 in the Federal Court of Australia (Perth Registry) against Transpacific Industries Pty Ltd (TPI) in relation to a fatal incident at the Alcoa Alumina Refinery (the refinery) in Wagerup, Western Australia, on 2 September 2008.

Comcare is seeking a declaration that TPI breached federal work health and safety laws by failing to take all reasonably practicable steps to provide and maintain a working environment and systems of work that was safe for its employees. The maximum penalty for the alleged breach is $242,000.

Comcare v John Holland Group Pty Ltd and John Holland Pty Ltd (Matter WAD 406/2010)

On 20 December 2010 Comcare initiated civil proceedings in the Federal Court of Australia (Perth Registry) against both John Holland Pty Ltd (JH) and John Holland Group Pty Ltd (JHG) in relation to a fatal incident and two dangerous occurrences at the Mt Whaleback Mine Facility in Western Australia.

Comcare will allege that on 19 March 2009, a JH employee died after falling 10 metres when the grid mesh he was standing on dislodged. Comcare will also allege there were two further dangerous occurrences on 12 and 18 March 2009 respectively, in which heavy grid mesh flooring fell from work structures landing on the ground near where JH employees were working. On each occasion, it will be alleged that the grid mesh had been installed by JH and JHG employees, but not secured.

Comcare is seeking a declaration that both JH and JHG breached s16 of the Occupational Health and Safety Act 1991 and the imposition of a fine in respect of those alleged breaches.

Comcare v Australian Postal Corporation (Matter QUD 541/2010)

On 13 December 2010 Comcare initiated civil breach proceedings in the Federal Court of Australia against Australian Postal Corporation (Australia Post) alleging it contravened its duty to contractors pursuant to s16 of the Occupational Health and Safety Act 1991. Comcare is also seeking the imposition of a fine in respect of the alleged contravention.

The proceedings arise from a Comcare investigation into an incident in July 2008 at a Queensland mail delivery centre, in which a contractor involved in loading mail was run over by a forklift. As a result of being run over the contractor received severe crush injuries to the right leg, which was later amputated at the knee.

Comcare v Post Logistics Australasia Pty Ltd (Matter NSD 1451/2010)

On 27 October 2010 Comcare initiated civil breach proceedings in the Federal Court of Australia against Post Logistics Australasia Pty Ltd (Post Logistics) following an investigation into a forklift incident at Eastern Creek, New South Wales. The incident occurred on 31 March 2008, when a Post Logistics employee sustained a fractured toe after the employee’s foot was run over by a forklift.

Comcare is seeking a declaration of contravention by Post Logistics of section 16 of the Occupational Health and Safety Act 1991 (the Act) and the imposition of a civil pecuniary penalty. Section 16 of the Act requires an employer to take all reasonably practicable steps to protect the health and safety at work of its employees and contractors.

Comcare v Post Logistics Australasia Pty Ltd (Matter NSD 1454/2010)

On 27 October 2010 Comcare initiated civil breach proceedings in the Federal Court of Australia against Post Logistics Australasia Pty Ltd (Post Logistics) alleging it contravened its duty pursuant to s16(1) of the Occupational Health and Safety Act 1991, and seeking the imposition of a fine in respect of that alleged contravention.

The proceedings arise from a Comcare investigation into an incident on 14 August 2009 in which the top of an employee’s thumb was amputated after it came into contact with damaged guarding on a semi-automatic pallet wrapper the employee was using.

Comcare v Australian Customs and Border Protection Service (Matter SAD 106/2010)

On 6 August 2010 Comcare initiated civil proceedings in the Federal Court of Australia alleging Australian Customs and Border Protection Service (Customs) breached s16 of the Occupational Health and Safety Act 1991 by failing to take all reasonably practicable steps to protect the health and safety at work of its employees.

These proceedings arise in relation to an incident at Adelaide International Airport on 17 December 2008 in which a Customs employee slipped on some glue that had been laid on a concrete floor by a contractor engaged by Customs to lay carpet tiles.

Comcare v Australian Railway Track Corporation Ltd (Matter SAD 106/2010)

On 30 July 2010 Comcare initiated civil proceedings in the Federal Court of Australia alleging the Australian Railway Track Corporation Ltd (ARTC) breached s17 of the Occupational Health and Safety Act 1991.

The proceedings arise from an incident on 20 September 2008 in which two members of the public died whilst travelling on an ARTC access road. Comcare will allege that ARTC failed to take all reasonably practicable steps to protect the health and safety of members of the public who were using an ARTC access road and bridge.

Comcare v Australian Postal Corporation (Matter VID 429/2010)

On 3 June 2010 Comcare initiated proceedings in the Federal Court of Australia against the Australian Postal Corporation following an investigation into a fatal motorcycle accident involving a postal delivery officer that occurred in the Northern Territory in May 2008. The investigation revealed that the motorcycle involved, as well as five others at the delivery centre, were unsafe and unroadworthy (although this was not a contributing factor to the accident).

Comcare alleges that Australia Post breached its duties to employees and contractors 16(1) of the Occupational Health and Safety Act 1991 (the Act) by failing to take all reasonably practicable steps to protect their health and safety at work in relation to the use of postal delivery motorcycles. Comcare also alleges that Australia Post’s procedures for the pre-ride motorcycle inspection and maintenance had not been effectively implemented at the delivery centre.

Comcare is seeking a declaration of contravention by Australia Post of s 16 of the Act and the imposition of a civil pecuniary penalty.

Comcare v Subsee Explorer Pty Ltd (Matter QUD 308 of 2009)

On 23 December 2009 Comcare initiated civil breach proceedings in the Federal Court of Australia against Subsee Explorer Pty Ltd (Subsee) alleging it contravened its duties as a manufacturer and supplier pursuant to ss18 and 19 of the Occupational Health and Safety Act 1991, and the imposition of a fine in respect of those alleged contraventions.

The proceedings arise from a Comcare investigation into an incident on or about 15 October 2005 in which the Malu Sara, a vessel owned and operated by the Department of Immigration and Citizenship (DIAC), disappeared in the Torres Strait. Five people died as a result of the incident, including two DIAC employees and three members of the public. Comcare will allege that Subsee was responsible for the manufacture and supply of the Malu Sara to DIAC, and that Subsee failed to take all reasonably practicable steps to ensure the Malu Sara was safe for use and without risk to health.

Comcare v Telstra Corporation Pty Ltd (Matter QUD 205/2009)

On 19 August 2009 Comcare initiated proceedings in the Federal Court of Australia against Telstra Corporation Limited following an investigation into an incident that occurred on 31 January 2008 in which a member of the public was injured when an access pit, maintained by Telstra, was allegedly left unguarded. The pit was located on a pathway between a train station in Brisbane and the office of an organisation that provides services to persons with impaired vision. While the access pit was allegedly left open and unguarded a member of the public with a vision impairment fell into the pit and sustained a serious personal injury.

Comcare alleges that Telstra breached section 17 of the Occupational Health and Safety Act 1991 (the Act) by failing to take all reasonably practicable steps to ensure that persons at or near a workplace under its control (who were not its employees or contractors) were not exposed to risk to their health or safety arising from the conduct of its undertaking. Comcare further alleges that this failure resulted in a serious personal injury to a member of the public who is vision impaired.

Comcare is seeking a declaration of contravention by Telstra Pty Ltd of section 17 of the Act and the imposition of a civil pecuniary penalty.

Comcare v John Holland Rail Pty Ltd (Matter VID 660/2008)

On 22 August 2008 Comcare filed proceedings in the Federal Court of Australia (Victoria) against John Holland Rail Pty Ltd (John Holland Rail) following an investigation into an incident which resulted in a serious personal injury to a John Holland Rail contractor. The contractor sustained a serious crush injury to the hand while operating an item of plant, which later resulted in the amputation of a finger

Comcare is seeking a declaration of contravention by John Holland Rail, of section 16(1) of the Occupational Health and Safety Act 1991 (the Act), and the imposition of a civil pecuniary penalty. Section 16 of the Act requires an employer to take all reasonably practicable steps to protect the health and safety at work of its employees and contractors.

Comcare is alleging that John Holland Rail failed in its duty of care to take all reasonably practicable steps to protect the health and safety at work of its contractor, and that this failure resulted in the serious personal injury that was sustained.

Enforceable Undertakings

Consistent with the Occupational Health and Safety Act 1991 (the Act) and Comcare Regulation Policy, Comcare may accept an enforceable undertaking from a duty holder instead of commencing civil proceedings for an alleged breach of the Act. Enforceable undertakings may also be used in appropriate circumstances to adjourn or resolve civil proceedings that are already underway.

John Holland Rail Pty Ltd

The EU follows an investigation by Comcare into a 27 April 2007 incident where a contracted labourer using a Clipper on the St Kilda Light Rail in Melbourne was involved in an incident which resulted in a right index finger crush injury requiring finger amputation.

Comcare’s investigation report concluded that JHR had breached section 16(4) of the Occupational Health and Safety Act 1991 (the Act)  because it failed to take all reasonably practicable steps to protect the health and safety of the contractor.

In particular, the report found that JHR failed to:

  • undertake a risk assessment to identify hazards present during use of the Clipper
  • implement reasonably practicable controls for the hazards arising from the use of the Clipper
  • provide the contractor with the information, instruction and training necessary to enable him to perform his work in a manner that was safe and without risk to his health
  • provide proper guarding on the Clipper
  • install a ‘dead man’ switch on the Clipper  

As part of the EU, JHR has undertaken to implement a range of improvements to workplace safety, including:

  • Review the guarding of Clippers across the rail business, with recommendations provided as to the nature of guarding of the clip compression device on the machines and internal procedures for ensuring all new clipping machines are guarded where appropriate.
  • Submit the outcomes of its review and recommended areas for improvement in operational safety design to the Clipper manufacturer.
  • Provide the findings of the review to the Australasian Rail Association.
  • Develop procedures which will ensure that their boards and senior management, and any employees, contractors or agents, and all other relevant persons are regularly informed on their performance of the EU obligations.
  • Engage an auditor within seven months of the EU date, to conduct an independent audit of JH & JHR’s:
    • compliance with the EU
    • development, performance, and/or implementation of its obligations under the EU
    • development, performance or implementation of any other measures JH & JHR have undertaken to develop, perform, implement and/or give effect to in accordance with the EU

Comcare will oversee compliance by JHR & JH with the EU for its duration.

A copy of the Undertaking can be viewed here:

Department of Defence

Comcare has accepted a Court-enforceable undertaking (EU) from the Department of Defence (Defence) in relation to an alleged failure to observe its duties under federal workplace safety laws. The undertaking is a legally enforceable commitment by the Chief of Army which is an alternative to Comcare pursuing civil proceedings against Defence.

Enforceable undertakings commit employers to do more than minimum compliance with workplace safety legislation. They include activities that deliver a tangible benefit to the health and safety in an organisation or the community generally.

The EU follows an investigation by Comcare into a 14 March 2008 incident, where a Reservist on a night training course at Mt Arapiles in Victoria fell from the end of a rope and sustained a fractured ankle.

Comcare’s investigation report concluded that Defence had breached section 16(1) of the Occupational Health and Safety Act 1991 (the Act) because it failed to take all reasonably practicable steps to protect the health and safety of the Reservist on 14 March 2008.

As part of the EU, the Chief of Army has undertaken to implement a range of measures including to:

  • Develop a single comprehensivepolicy for all aspects of military roping training, incorporating the best practice military roping procedures/techniques from existing Army Training Instructions.
  • Develop and release a single doctrine publication for non-military roping incorporating the best practice non-military roping procedures/techniques from the existing Army Training Instruction, which is then to be cancelled.
  • Develop and release a single doctrine publication for military roping and then cancel the existing military roping document/procedure.
  • Separate the current training management package for military ropers into a package for ropers and another for their supervisors.
  • Create the new office of ‘Training Authority for Military Roping’ and appoint the Commandant of the Special Forces Training Centre to that position.
  • Fund an independent expert agency to review the technical requirements in the single doctrine publication for military roping.
  • Provide Comcare with a copy of the independent expert agency Review Report and a Corrective Action Plan (if required) to outline the implementation of any necessary changes to documents or procedures as a result of Review Report.
  • Engage ArmySAFE Advisory Service to complete an audit of the revised policies and procedures related to military roping to ensure that the additional safety measures identified are being applied.

Comcare will oversee compliance by Defence with the EU for its duration.

A copy of the undertaking can be viewed here:

Australian Customs and Border Protection Service

Comcare has accepted a court enforceable undertaking from Australian Customs and Border Protection Service. Customs and Border Protection undertake to review its organisational risk management policies and procedures, to develop and improve practices as required, and deliver training aimed at ongoing improvements to its OHS systems, awareness and practices.

The undertaking arises out of an incident on 17 December 2008 at Adelaide Airport where a Customs and Border Protection employee slipped on some glue and fractured her arms when she fell onto the concrete floor. The glue had been laid by contractors engaged by Customs and Border Protection to lay carpet tiles. The risk arose from poor contractor management as Customs and Border Protection employees were permitted in and around where the contractors were working. Poor risk awareness from Customs and Border Protection allowed this situation to continue.

Customs and Border Protection have undertaken to achieve a thorough review and improvement of it's OHS systems, including independent expert input and review, and includes development of better procedures, greater clarity of responsibility for OHS issues, targeted training of key employees, and both a broad national approach combined with regional focus on areas requiring attention. The undertakings focus on risk awareness and contractor management but also relate to other OHS issues peculiar to Customs and Border Protection workplaces. Customs and Border Protection undertakes to implement discrete tasks according to a prescribed timeline, and provide documentary, and other evidence, to Comare's enforceable undertaking monitoring team.

Customs has further undertaken to make a public presentation at a relevant OHS conference to discuss it's revised approach to OHS risk management.

Comcare Work Health and Safety General Manager Neil Quarmby said Comcare looks forward to ensuring that Customs - under this Enforceable Undertaking - takes the necessary steps to reinforce its safety systems thereby preventing injuries in the future.

Court proceedings commenced by Comcare following the incident have been adjourned while Comcare monitors the implementation of the undertakings.

A copy of the undertaking can be viewed here: Enforceable undertaking - Australian Customs and Border Protection Service [PDF]

Australian Rail Track Corporation Ltd 

Comcare has accepted a court enforceable undertaking from Australian Rail Track Corporation Ltd (ARTC). Amongst other things, ARTC undertakes to develop and implement risk identification, assessment and control training and procedures to complement and improve its current risk management systems.

Comcare had commenced civil proceedings against ARTC in regard to an alleged breach of section 17 of the Occupational Health and Safety Act 1991 (the OHS Act) on 20 September 2008. In the early hours of that morning, a vehicle with two occupants crashed when it went off the unbarricaded edge of a bridge on an unsealed 'access track' owned and controlled by ARTC. Both occupants of the vehicle died at the scene.

The investigation found that at the time of the incident, the occupants of the vehicle were under the influence of alcohol and ARTC were unaware of their presence. The access track was rarely used by ARTC and could only be driven on safely with caution. There were no signs or barriers indicating the access track was not for public use. ARTC have since closed the access track and bridge, with signs and barriers, to vehicle use.

ARTC have undertaken to identify and control risks to the general public, arising out of its operations, with a particular focus on disused infrastructure such as the access track involved in the incident. ARTC will aim to ensure that risks to the public are eliminated (or minimised so far as practicable) through reviews and additions to its risk management systems, the development and delivery of risk identification and assessment training programs, prohibitions on people acting in certain roles unless they have completed risk management training, and internal and external audits of their safety systems to ensure that these undertakings are having the desired impact.

Comcare will monitor the undertaking for its duration.

A copy of the undertaking can be viewed here: Enforceable Undertaking – ARTC Ltd [PDF,2.5MB]

K&S Freighters Pty Ltd

Comcare has accepted a court-enforceable undertaking from K&S Freighters Pty Ltd (K&S) to improve its workplace safety after an alleged failure by K&S to observe its duties under federal workplace safety laws.

The enforceable undertaking follows an investigation by Comcare into a workplace accident at Chullora, NSW, in December 2007 in which a K&S truck driver suffered crush injuries to his arms and legs while a truck was being unloaded.

Comcare’s investigation found that K&S breached section 16(1) of the Occupational Health and Safety Act 1991. In particular, the investigation found that K&S failed to ensure safe systems of work for the loading and unloading of trucks.

The undertaking is a legally enforceable commitment by K&S to achieve more than minimum compliance with workplace safety legislation. K&S has undertaken to collaborate with industry bodies and safety experts to develop, test and disseminate an education campaign to prevent similar injuries across the whole sector.

A copy of the undertaking can be viewed here: Enforceable Undertaking - K&S Freight Pty Ltd [PDF]

Telstra Corporation Limited

Comcare has accepted a court enforceable undertaking from Telstra Corporation Limited. Telstra undertake to develop additional practical initiatives to enhance the safety of infrastructure repair and maintenance operation.

The proceedings arise from an incident on 31 January 2008 when two Telstra sub-contractors opened an access pit while conducting work. The pit is located on a pathway between a train station in Brisbane and the office of an organisation that provides services to persons with impaired vision. While the access pit was allegedly left open and unguarded, a member of the public, fell into the pit and sustained a serious personal injury. 

In a media release of 19 August 2009 Comcare’s Acting CEO Steve Kibble said “This action is a reminder to organisations within the Comcare scheme that they have a responsibility, not only to their employees, but to the public, in maintaining safe work environments.”

Telstra with the assistance of Monash University Accident Research Centre (MUARC) will identify and develop additional practical initiatives to enhance the safety of infrastructure repair and maintenance operations by undertaking three projects consisting of; a comparison of Telstra’s guarding design and application and temporary pit repair response as against world’s best practice; Consultation with, and observation of, Telstra contractors to identify opportunities for improvement to contractor compliance and  Public consultation regarding the efficacy of current guarding design, and temporary repair response, and issues affecting damage reporting efficiency.

Comcare will monitor compliance by Telstra with the enforceable undertaking for its duration.

A copy of the undertaking can be viewed here: Enforceable undertaking - Telstra Corporation Limited [PDF]

A copy of the signed undertaking and enclosures can be obtained by sending a request to: media@comcare.gov.au

Transpacific Industries Pty Ltd

Comcare has accepted an enforceable undertaking (EU) from Transpacific Industries Pty Ltd (TPI) arising from three sets of civil proceedings in the Federal Court of Australia. The proceedings, SAD 34, 35, and 36 of 2011, were in regard to three alleged failures of TPI to observe its duties under the Occupational Health and Safety Act 1991 (OHS Act).

On 16 September 2008 a TPI employee at a Victorian TPI controlled workplace was using a hot stamping machine to impress logos on 240 litre wheelie rubbish bins when his left hand became trapped under the stamping mechanism. The employee received serious burns to his hand resulting in permanent scarring, and ligament damage to his thumb. Comcare alleged that in regard to the hot stamping machine, TPI failed to:

  • conduct appropriate risk assessments;
  • ensure appropriate guarding was in place; and
  • provide the employee with adequate information, instruction, training and supervision.

On 16 December 2008 a TPI employee working at the Olympic Dam site in South Australia was using a hose connected to a vacuum truck, to vacuum sulphuric acid from a sump. When the employee attempted to change the vacuum hose, sulphuric acid poured from the hose onto the employee’s upper body. The employee was wearing appropriate personal protection equipment but had failed to secure the collar on his acid protection suit. Acid seeped into the suit through the open collar and ran down the employee’s chest, resulting in permanent scarring. Comcare alleged that in relation to the task of vacuuming sulphuric acid from a sump, TPI failed to:

  • conduct appropriate risk assessment of the task; and
  • provide the employee with adequate information, instruction, training and supervision to safely conduct the task.

On 21 August 2009 a TPI employee at the Mandurah Recycling Facility in Western Australia was operating a machine that used a hydraulic ram to compress plastic into bales. Some time prior, a hole had been cut into the housing of the baling machine to access the hydraulic ram. The hole was not covered after the maintenance, and each time the hydraulic ram moved forwards and backwards, the hole was exposed and covered, creating a crush hazard. The employee rested his foot on the lip of the hole as he operated the machine. His right foot was crushed between the ram and the edge of the hole. TPI allege it was unaware of the hole or the risk it posed. TPI had conducted risk assessments on the baling machine but Comcare found them to be inadequate, in particular, because they were done while the machine was not operating.

Comcare conducted an investigation into each incident. The investigations concluded that in relation to each incident, TPI had breached section 16 of the OHS Act.

The enforceable undertaking targets every level of the TPI hierarchy and requires TPI to make extensive improvements to its workplace health and safety systems. The EU focuses on the dual fundamental causes of all three incidents:

  • Employee training, instruction, information and supervision; and
  • Hazard identification and risk assessment.

The EU will address these issues in a comprehensive manner for all TPI employees at all TPI workplaces across Australia. The EU is directed at empowering all TPI employees to be able to identify, and take appropriate action to control, risks and hazards in the places they work and that arise from the work they do.

The enforceable undertaking can be viewed: