Telstra Corporation Limited v Comcare Australia Pty Ltd (Burwood Telephone Exchange Improvement Notice)

Telstra Corporation Ltd v Comcare Australia Pty Ltd [2007] (Burwood Telephone Exchange Improvement Notice)

Issue

Section 68 of the Occupational Health and Safety Act 1991 (‘the Act’) requires that serious personal injuries arising out of the conduct of an employer’s undertaking must be notified to Comcare within 24 hours, in accordance with regulation 37A of the Occupational Health and Safety (Safety Arrangements) Regulations 1991 (‘the Regulations’).

On 21 August 2006, a subcontractor (‘the contractor’) contracted by Transfield Services Pty Ltd to provide maintenance services to Telstra Corporation Ltd (‘Telstra’), severed three fingers while working on an air-conditioning compressor at the Burwood Telephone Exchange in Sydney, New South Wales. Telstra did not notify the incident to Comcare until 28 August 2006.

Investigation

Comcare conducted an investigation into the incident, including an examination of the procedures in place for notifying Comcare of accidents and/or dangerous occurrences. The Comcare investigator formed the opinion that Telstra had failed to notify Comcare of an accident within the timeframe prescribed by the Regulations. On that basis, the investigator issued Telstra with an Improvement Notice under s 47 of the Act. The Notice required Telstra to ensure that its employees at the Burwood Telephone Exchange who were responsible for notifying Comcare of accidents and/or dangerous occurrences be reminded of the prescribed timeframes for the making of such a notification.

Outcome

On 3 October 2006, Telstra lodged a Notice of Appeal with the New South Wales Australian Industrial Relations Commission (‘the AIRC’) against the investigator’s decision to issue the Improvement Notice. The appeal was made on the grounds that the investigator had failed to take account of the fact that, at the time of the accident, the premises were controlled by a contractor for construction or maintenance purposes, therefore enlivening s 14 of the Act. If so, the requirement to notify would not apply.

The matter was heard before Vice President Lawler on 14 December 2006. On 23 February 2007, Vice President Lawler dismissed Telstra’s appeal and affirmed the investigator’s decision to issue the Improvement Notice, finding that Telstra was in fact in control of the workplace for the purposes of the Act.

Telstra lodged an appeal against the decision of Vice President Lawler on 19 March 2007. The appeal was heard by the full bench of the AIRC on 25 April 2007. The appeal decision was handed down on 30 May 2007. The full bench of the AIRC affirmed the decision of Vice President Lawler that the Improvement Notice was valid and dismissed Telstra’s appeal.