Current actions
Civil Proceedings
- Comcare v Telstra Corporation Pty Ltd
- Comcare v Asciano Services Pty Ltd
- Comcare v John Holland Pty Ltd
- Comcare v John Holland Rail Pty Ltd (VIC)
Enforceable Undertakings
- Asciano Services Pty Ltd
- John Holland Rail Pty Ltd
- Australian Army Cadets
- Australian Postal Corporation
- Department of Defence
Civil Proceedings
Civil Proceedings – Comcare v Telstra Corporation Pty Ltd
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.
Civil Proceeding – Comcare v Asciano Services Pty Ltd
On 23 February 2009 Comcare initiated proceedings in the Federal Court of Australia (South Australia) against Asciano Services Pty Ltd (Asciano Services) following an investigation into a dangerous occurrence which occurred at the Adelaide Freight Terminal on 28 November 2008. A mobile crane known as a ‘Reach Stacker’ fell onto its side while loading a container onto a train. No injuries were sustained as a result of this occurrence.
Comcare is seeking a declaration of contravention by Asciano Services 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 is alleging that Asciano Services failed to take all reasonably practicable steps to protect the health and safety at work of its employees and that this failure resulted in a dangerous occurrence.
A further directions hearing is set down for 11 May 2009.
Civil Proceedings – Comcare v John Holland Pty Ltd
On 2 February 2009 Comcare initiated proceedings in the Federal Court of Australia (Queensland) against John Holland Pty Ltd (John Holland) following an investigation into the death of an employee at the Dalrymple Bay Coal Terminal in Queensland on 6 May 2008. The employee was run over by the wheels of a jinker after getting his foot trapped under wooden scaffolding planks of a jetty.
Comcare is seeking a declaration of contravention by John Holland, of section 16(1) of the Occupational Health and Safety Act 1991 (the Act), the imposition of a civil pecuniary penalty, and an order that John Holland pay Comcare's costs. 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 failed to take all reasonably practicable steps to protect the health and safety at work of its employees and that this failure resulted in a workplace fatality.
A hearing took place on 9 February 2009. The matter was adjourned by consent of both parties until 29 April 2009.
Civil Proceedings – Comcare v John Holland Rail Pty Ltd (VIC)
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
Enforceable undertaking - Asciano Services Pty Ltd
Comcare has accepted a Court-enforceable undertaking from Asciano Services Pty Ltd, (Asciano) for an alleged failure to observe its duties under federal OHS laws.
The enforceable undertaking is a legally enforceable commitment by Asciano and has been accepted by Comcare as an alternative to pursuing civil proceedings against Asciano for an alleged breach of the Occupational Health and Safety Act 1991 (the Act).
As part of an enforceable undertaking, the employer commits to undertaking a range of activities that:
- are above minimum compliance with workplace safety laws
- deliver benefits to the health and safety of employees and contractors within the organisation and/or the community.
The enforceable undertaking is in response to a Comcare investigation into a 28 November 2007 incident where a reach stacker tipped over at the Adelaide Freight Terminal (AFT) in South Australia.
The 76 tonne reach stacker was loading a 5.76 tonne container onto a train wagon on a section of track when the wagon began moving. As the wagon moved forward, the container on the reach stacker caught onto a container that had already been loaded on the wagon and started to drag the reach stacker. The reach stacker operator unsuccessfully tried to raise the container high enough to clear the container on the wagon. As a result, the reach stacker was dragged along in the direction of the moving wagon and toppled onto its right side.
Comcare began an investigation into the incident on 28 November 2007. The investigation found that Asciano breached section 16(1) of the Act because it failed to take all reasonably practicable steps to provide and maintain a safe working environment, in accordance with the requirements of section 16(2)(a) of the Act.
The enforceable undertaking commits Asciano to:
- conducting a hazard/risk assessment of the radio communications system
- adopting an Isolation of Roads Procedure
- providing risk assessed procedures for communications between loading and shunting staff
- taking steps to ensure that staff are properly licensed to operate plant
- adopting a hazard identification, risk assessment and control procedure for tasks, plant and substances
- completing a hazard and risk assessment report for operations at all Asciano operated terminals
- taking steps to protect the computer communications recording system to avoid accidental or deliberate turning off of the system
- documenting reporting guidelines for all levels at the facility
- establishing clear guidelines for reporting safety incidents to Comcare
- reviewing and auditing the Isolation of Roads Procedure by the end of 2009
- providing a copy of the audit reports to Comcare as soon as practicable
- making necessary amendments to the Isolation of Roads Procedure to adopt all the recommendations made by the auditor or explaining to Comcare why it will not implement the recommendations
- conducting an annual audit at all Asciano operated terminals to assess the effectiveness of the OHS measures set out in the enforceable undertaking
- amending any OHS measures the General Manager considers necessary to address any recommendations arising from the OHS audit, and reporting to Comcare on the actions taken or proposed to be taken.
Comcare will monitor compliance by Asciano with the enforceable undertaking for its duration.
A copy of the undertaking can be viewed here:
Enforceable Undertaking - John Holland Rail Pty Ltd
Comcare has accepted a Court-enforceable undertaking (EU) from John Holland Rail Pty Ltd (JHR) in relation to an alleged failure to observe its duties under federal workplace safety laws. The undertaking is a legally enforceable commitment by JHR.
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 24 August 2007 incident where an apprentice boilermaker was involved in an incident which resulted in crush injuries to his left index finger at a JHR facility located at Kewdale, Western Australia.
Comcare’s investigation report concluded that JHR had breached section 16 of the Occupational Health and Safety Act 1991. In particular, the report found that JHR failed to ensure the apprentice, had received adequate training, supervision and instructions in the task he was undertaking when injured.
As part of the EU, JHR has undertaken to make a number of mandatory improvements to workplace safety, including:
- ensure supervisors sign off on all apprentices’ workbooks across all of JHR workplaces within 6 months of signing the EU
- maintain the new supervisory structure implemented at the Kewdale facility shortly after the incident
- maintain new safer systems of work recently implemented in undertaking plant maintenance activities at the Kewdale facility
- implement and adapt the safer systems of work across JHR workplaces within two months of signing the EU
- conduct a risk assessment of all major activities undertaken by JHR to determine and identify those which should be classified as ‘high risk activities’ (HRAs) within six months of signing the EU
- eliminate where reasonably practicable to do so, all HRAs and otherwise apply appropriate control measures to the balance of the HRAs, within six months of signing the EU
- prepare written training material describing how to safely undertake the residual HRAs and integrate training material into induction and refresher training materials for all of JHR’s workplaces within 12 months of signing the EU
- provide training regarding safer systems of work to all JHR employees who undertake rail plant maintenance activities as part of their duties within eight months of signing the EU
- implement the 'Mates Mentoring' program and conduct training for nominated ‘mentors’ at all JHR workplaces within three months of signing the EU
- amend JHR’s training database to record all training undertaken by each of its employees and ensure that such amendments are completed within two weeks of signing the EU and subsequently within two weeks of the employee completing the training
- provide within two months of signing the EU an anonymous suggestion box at each JHR Rail Plant Maintenance Facility in which employees can provide suggestions about additional training they wish to undertake
- review new supervisory structure implemented at the Kewdale facility at six monthly intervals to ensure appropriate levels of supervision are being maintained. The first review is to occur by 31 December 2009
- review and where necessary implement appropriate revised supervisory structures at all of JHR workplaces within three months of signing the EU
- commence implementation of the Rail Safety Business Plan 2009 at all JHR workplaces by 31 September 2009 including commencing work on each of the 28 strategic initiatives within the stated timeframes.
Comcare will oversee compliance by JHR with the EU for its duration.
A copy of the Undertaking can be viewed here:
Enforceable Undertaking - Australian Army Cadets
Comcare has accepted a Court-enforceable Undertaking from the Chief of Army, Australian Army in relation to an alleged failure by the Australian Army to observe its duties under the Occupational Health and Safety Act 1991 (the Act). The Undertaking is a legally enforceable commitment by the Chief of Army which has been accepted by Comcare as an alternative to Comcare pursuing civil proceedings against the Chief of Army in relation to the alleged breach of the Act.
The Undertaking follows an investigation by Comcare into an incident, which occurred on 30 March 2007, when six Australian Army Cadets, during the course of a navigation exercise, failed to return to their camp site by the designated arrival time that day. The Australian Army Cadet section (the lost section) was not located during searches by Australian Army Cadet staff and was still unaccounted for by first light on 31 March 2007. Subsequently, on the morning of 31 March 2007, under its own ability the section returned to camp headquarters in the Wombat State Forest. Comcare's investigation into that incident identified a number of breaches of section 16 of the Act.
The Chief of Army has undertaken to:
- admit liability that the Australian Army failed to ensure, for the totality of the navigation exercise undertaken by the lost section, that the lost section were in possession of a radio as was previously issued and which had been identified as required in the risk assessment
- write to the individual members of the lost section and their families expressing regret for the incident that occurred
- produce a field activities handbook to assist in the planning and conduct of Australian Army Cadet field activities
- develop a standard operating procedure for the mandatory reporting requirements on lost or overdue cadets for Australian Army Cadet field activities and review the Activity Approval process so as to include notification of certain activities to Emergency Services from 1 March 2009
- design a new Australian Army Cadets Risk Management process which is consistent with the Australian Defence Force's Military Risk Management process and suitable for Australian Army Cadet personnel, with progressive implementation from 1 May 2009
- provide Comcare with copies of review findings and new systems that have been implemented and with copies of the policies and procedures arising out of the Cadet OHS Risk Management Investigation.
Comcare will oversee compliance by Chief of Army with the Undertaking for its duration, which expires on 1 April 2010.
A copy of the Undertaking can be viewed here:
Enforceable Undertaking – Australian Postal Corporation
Comcare has accepted a Court-enforceable Undertaking from the Australian Postal Corporation (Australia Post) in relation to an alleged failure by Australia Post to observe its duties under the Occupational Health and Safety Act 1991 (the Act). The Undertaking is a legally enforceable commitment by Australia Post which has been accepted by Comcare as an alternative to Comcare pursuing civil proceedings against Australia Post in relation to the alleged breach of the Act.
The undertaking follows an investigation by Comcare into a motorcycle accident that occurred on 12 November 2004 at Bundoora, Victoria, in which an employee of Australia Post was seriously injured. Comcare’s investigation into the accident revealed that the motorcycle being ridden by the employee at the time of the accident was in an un-roadworthy condition. The investigation further revealed that the employee had not been appropriately supervised to ensure that she did not ride a motorcycle that was un-roadworthy.
Australia Post has undertaken to:
- work with the Monash University Accident Research Centre to design and conduct a significant research study to provide for substantial and sustainable improvements in the safety of motorcycle delivery operations;
- implement in relation to its operations, countermeasures to address any work practices and organisational safety climate factors that have been identified by the study as contributing to the incidence of motorcycle operations related injuries; and
- make available to Comcare the results of the study, for its use to the broader benefit of the community.
Comcare will oversee compliance by Australia Post with the Undertaking for its duration.
A copy of the undertaking can be viewed here:
A copy of the signed undertaking and enclosures can be obtained by sending a request to: media@comcare.gov.au
Enforceable Undertaking - Department of Defence
Comcare has accepted a Court-enforceable Undertaking from the Department of Defence (through the Chief of the Defence Force) in relation to an alleged failure by the Australian Defence Force to observe its duties under the Occupational Health and Safety Act 1991 (the Act). The Undertaking is a legally enforceable commitment by Defence which has been accepted by Comcare as an alternative to Comcare pursuing civil proceedings against Defence in relation to the alleged breach of the Act.
The Undertaking follows an investigation by Comcare into an accident in June 2005 in which a member of the Australian Defence Force was seriously injured while conducting roadside repairs on an Army vehicle. Comcare’s investigation into the accident revealed that the Australian Defence Force member had not been provided with adequate training and instruction to carry out the repairs in a safe manner. The investigation further revealed that the member had not been appropriately supervised while undertaking the repairs to ensure that he did so safely.
Defence has undertaken to:
- review the Australian Army’s risk management framework and work with Comcare to design and conduct a significant research project into Occupational Health and Safety (OHS);
- review the procedures relating to the type of repair that was conducted on the vehicle involved in the June 2005 accident and amend its policies and procedures where required;
- provide training to all Australian Defence Force and civilian mechanics on the new procedures;
- provide a case study of the item of equipment involved in the June 2005 accident, to all potential Royal Australian Electrical and Mechanical Engineer Corps (Army) supervisors before promotion.
Comcare will oversight compliance by Defence with the Undertaking for its duration.
A copy of the undertaking and enclosures can be viewed here:
Enclosures:
1. Defence Occupational Health and Safety Strategy 2007-1 [pdf]
2. Defence OHS Policy Statement [pdf]
3. Major Defence Priorities for 2007/08 [pdf]
4. Defence OHS Governance Structure [pdf]
5. CDF/SEC/CEO DMO Directive [pdf]
6. ArmySafe Bulletin 3 Apr 07 [pdf]
