FEDERAL COURT OF AUSTRALIA
Comcare v Australian Postal Corporation [2011] FCA 1533
Citation: Comcare v Australian Postal Corporation [2011] FCA 1533 Parties: COMCARE v AUSTRALIAN POSTAL CORPORATION File number: QUD 541 of 2010 Judge: LOGAN J Date of judgment: 5 December 2011 Catchwords: INDUSTRIAL LAW – occupational health and safety – breach of duty of employer to take all reasonably practicable steps to protect the health and safety of employees – mail centre – accident occurred causing serious injury to employee – traffic management plan existed but was not enforced – failure through corporate chain of command to enforce the plan – pecuniary penalty sought and imposed – factors to take into account Legislation: Occupational Health and Safety Act 1991 (Cth) ss 5, 9A, 16, Sched 1 Cases cited: Australian Communications and Media Authority v Mobilegate Ltd (No 4) (2009) 180 FCR 467 applied
Comcare v Commonwealth of Australia [2011] FCA 1043 cited
Comcare v Commonwealth (2007) 163 FCR 207 referred to
McLean v Tedman (1984) 155 CLR 306 cited
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 citedDate of hearing: 5 December 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Ms K Mellifont SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr JE Murdoch SC Solicitor for the Respondent: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 541 of 2010
BETWEEN: COMCARE
ApplicantAND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
5 DECEMBER 2011
WHERE MADE:
BRISBANE
THE COURT DECLARES THAT:
1.On or around 7 July 2008, the respondent contravened sub-clause 2(1) of Part 1 of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) (the OHS Act) by reason of it having breached s 16(1) of the OHS Act, in that it failed to take all reasonably practicable steps, in relation to matters over which it had control, to protect the health and safety at work of its contractor Leonard Bobart, in the following respects:
(a)Despite developing documented OHS policies and procedures which identified the risks to health and safety arising from the interaction of pedestrian and forklift traffic at the Toowoomba Mail Centre (TMC), and set out control measures to eliminate, or minimise such risks (documented procedures), the respondent failed to implement the documented procedures with respect to its contractors working at the TMC;
(b)The respondent failed to provide information, instruction, training or supervision to its contractors working at the TMC (including Mr Bobart) about the documented procedures, necessary to enable them to perform their work in a manner that was safe and without risk to their health. In particular, the respondent:
(i)failed to provide contractors copies of, or training in respect of, the documented procedures;
(ii)failed to ensure the documented procedures were sufficiently displayed so as to be obvious to the contractors at the TMC;
(iii)failed to adequately instruct contractors working at the TMC about their access…
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- Case
- [2011] FCA 1533
- Decision Date
CaseChat Overview and Summary
The primary issue before the court was whether the Australian Postal Corporation had failed to enforce its traffic management plan, thereby breaching its occupational health and safety obligations. The court had to consider the reasonableness of the steps taken by the respondent to implement and enforce the plan and whether these steps were sufficient to protect the employees' health and safety. Additionally, the court examined the corporate chain of command to determine the extent to which the failure to enforce the plan was attributable to systemic issues within the respondent.
The court found that the respondent had indeed breached its occupational health and safety obligations by failing to enforce the traffic management plan. It determined that the plan, while in place, was not adequately enforced, and this failure led to the employee's injury. The court considered various factors, including the respondent's awareness of the need for enforcement, the corporate chain of command, and the reasonableness of the steps taken to protect employees. Based on these findings, the court imposed a pecuniary penalty on the respondent, considering the severity of the breach and the need for deterrence. The court also awarded costs to the applicant for the proceedings.
The final orders of the court mandated that the respondent pay a pecuniary penalty of $160,000 to the Commonwealth of Australia, along with costs of $80,000. The penalty was to be paid by the respondent by 5 January 2012. The court's decision underscores the importance of enforcing occupational health and safety plans to protect employees and the consequences for employers who fail to meet these obligations.
Orders
Orders of the court
1. Pursuant to clause 4 of Schedule 2 of the OHS Act, the respondent is to pay the Commonwealth of Australia a pecuniary penalty in the sum of $160,000.
2. The respondent is to pay the applicant’s costs of and incidental to the proceeding which are fixed at $80,000.
3. Payment of the pecuniary penalty is to be made by the respondent not later than 5 January 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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