Comcare v John Holland Rail Pty Ltd - [2009] FCA 771

FEDERAL COURT OF AUSTRALIA
Comcare v John Holland Rail Pty Ltd [2009] FCA 771
INDUSTRIAL LAW – occupational health and safety – breach of duty of employer to take all reasonably practicable steps to protect the health and safety of the employer's employees – serious offending conduct - declaration of contravention made - pecuniary penalty imposed
Occupational Health and Safety Act 1991 (Cth) s 3, s 5, s 12, s 12A(1), s 16, s 16(1), s 16(2), s 41, s 41(3), s 45A, s 47, s 77, s 77(1), s 79, Schedule 2 Part 1 cl 2, cl 2(1) cl 2(1)(a), cl 4, cl 4(1), cl 4(2), cl 5, cl 5(1), cl 8, cl 9, cl 14, cl 15, cl 16, Schedule 2 Part 2 cl 18(1)(c), Schedule 2 Part 2 cl 17, Part 4 Div 2
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Comcare v Commonwealth (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2007] FCA 662
Comcare v Commonwealth of Australia [2009] FCA 700
Comcare v National Gallery of Australia [2007] FCA 1548
Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200
COMCARE v JOHN HOLLAND RAIL PTY LTD
WAD 263 of 2008
20 JULY 2009
BARKER J
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 263 of 2008

BETWEEN:
COMCARE
Applicant

AND:
JOHN HOLLAND RAIL PTY LTD
Respondent

JUDGE:

BARKER J

DATE OF ORDER:

20 JULY 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.A declaration pursuant to cl 2 of Sch 2, Pt 1 of the Occupational Health and Safety Act 1991 (Cth) on 15 November 2007, the respondent contravened cl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 by reason of it having breached s 16(1) of the said Act in that it failed to take all reasonably practicable steps to protect the health and safety at work of its employees by:
(a)failing to provide and maintain a working environment, including plant and systems of work that were safe;
(b)failing to ensure the safety at work of, and the absence of risk at work to the health of its employees in connection with the use and handling of plant and substances; and
(c)failing to provide appropriate information, instruction, training and supervision to its employees in connection with the task of refuelling the rail saw.

2.Pursuant to cl 4 of Sch 2 of the said Act the respondent pay to the Commonwealth of Australia a penalty of 1136 penalty units, equating to $124,960.00.
3.The respondent to pay the applicant's taxed costs, if not previously agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 263 of 2008

BETWEEN:
COMCARE
Applicant

AND:
JOHN HOLLAND RAIL PTY LTD
Respondent

JUDGE:

BARKER J

DATE:

20 JULY 2009

PLACE:

PERTH

REASONS FOR JUDGMENT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 771
Decision Date: 20 July 2009

CaseChat Overview and Summary

In the matter of Comcare v John Holland Rail Pty Ltd, the respondent, John Holland Rail Pty Ltd, was found to have contravened the Occupational Health and Safety Act 1991 (Cth) by failing to take all reasonably practicable steps to protect the health and safety of its employees. The primary issue before the Court was to determine the appropriate pecuniary penalty to be imposed on the respondent for this contravention. The facts of the case involved the respondent's employees working on a rail track maintenance task at Koolyanobbing, where they were required to use thermit welding techniques. The incident resulted in a serious injury to one of the employees, highlighting the respondent's failure to ensure a safe working environment and provide adequate training and supervision.

The Court was required to consider the gravity of the offending conduct, its consequences, and the respondent's prior good record and admission of contravention. It was necessary to balance these factors to determine an appropriate penalty that neither excessively punishes the respondent nor undervalues the severity of the breach. The Court concluded that a penalty towards the middle of the scale was appropriate, acknowledging the seriousness of the incident but also the respondent's previous compliance record and prompt admission of fault.

After weighing the relevant factors, the Court determined that a penalty of 1136 penalty units, equivalent to $124,960.00, was appropriate. This penalty reflects the gravity of the contravention and the need for deterrence while also considering the respondent's good standing and cooperation. The Court further ordered that the respondent pay the applicant's taxed costs, if not previously agreed. The final orders included a declaration of contravention and the imposition of the determined penalty.

Orders

Orders of the court

1. A declaration pursuant to cl 2 of Sch 2, Pt 1 of the Occupational Health and Safety Act 1991 (Cth) on 15 November 2007, the respondent contravened cl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 by reason of it having breached s 16(1) of the said Act in that it failed to take all reasonably practicable steps to protect the health and safety at work of its employees by:

(a) failing to provide and maintain a working environment, including plant and systems of work that were safe;

(b) failing to ensure the safety at work of, and the absence of risk at work to the health of its employees in connection with the use and handling of plant and substances; and

(c) failing to provide appropriate information, instruction, training and supervision to its employees in connection with the task of refuelling the rail saw.

2. Pursuant to cl 4 of Sch 2 of the said Act the respondent pay to the Commonwealth of Australia a penalty of 1136 penalty units, equating to $124,960.00.

3. The respondent to pay the applicant's taxed costs, if not previously agreed.

Note:

Background

Background to the litigation

Thus, the primary issue for determination in this proceeding is the determination of the appropriate pecuniary penalty to be imposed on the respondent in respect of its contravention of the OHS Act.FACTS The parties agreed the following statement of facts, which the Court accepts and acts upon. Statements by a number of employees of the respondent and others have been received into evidence at the hearing of this proceeding and support the facts as agreed. The respondent is and was at all material times a non-Commonwealth licensee as defined under s 5 of the OHS Act. The respondent is a national business which owns and operates several facilities under the provisions of the OHS Act. The respondent was at all material times the owner and operator of a facility located at Kalgoorlie which, amongst other things, provides track maintenance services in the Kalgoorlie and surrounding areas. The respondent was at all material times the operator of a worksite at Koolyanobbing railway siding (Koolyanobbing), located twenty five kilometres from Southern Cross in Western Australia. On 15 November 2007, the respondent assigned eight employees, otherwise known as Team 305, to repair four rail tracks at Koolyanobbing (incident site). Team 305 consisted of: ·Matthew Dwyer (Dwyer) - Thermit Welder/Track Maintainer level 3; ·Solomon Gela (Gela) - Track Maintainer level 1; ·Dave Geissmann (Geissmann) - Track Supervisor level 7; ·Mark Bartlett (Bartlett) - Track Welder/Track Maintainer level 6; ·Greg Hall (Hall) - Track Maintainer Level 2/Trainee Welder; ·Bruce Howie (Howie) - Leading Hand; ·Anthony Radosevich (Radosevich) - Team's designated health and safety person; and ·Jeffrey Webster (Webster) - Track Maintainer level 4. Dwyer was employed by the respondent as a Track Maintainer Level 3 pursuant to the John Holland Rail Pty Ltd Rail Maintenance Agreement 2006 - 2009 (the JHR Agreement). He was a qualified thermit welder. At the time of the incident, Geissmann was employed by the Respondent as a Track Maintainer Level 7. Geissmann was a qualified welder and the assigned supervisor of Team 305. Geissmann's position description included supervisory duties. Bartlett was employed by the respondent as a Track Maintainer Level 6 pursuant to the JHR Agreement. Under the JHR Agreement, a Level 6 Track Maintainer is required to perform leading hand duties and have the ability to supervise a work team. Bartlett had been a supervisor for and a leading hand of a team of employees, otherwise known as Team 307. He was a qualified thermit welder with over 10 years experience. Bartlett usually worked with Team 307, but had been sent to work with Team 305 approximately 5 weeks before the incident. Solomon Gela was employed by the respondent as a Track Maintainer Level 1 under the JHR Agreement. He had been employed for approximately 8 weeks. In order to repair the four rails, Team 305 was required to use Aluminothermic (thermit) welding techniques (the works). Thermit welding is a process whereby superheated liquid metal filler is used to join rails. Once the superheated filler metal comes into contact with the alloys within the rails, it melts to form a join. As the molten metal cools it solidifies to form a weld.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the seriousness of the offending conduct and its consequences, but also taking into account the prior good record of the respondent and its admission of contravention, I do not consider it is appropriate to impose a pecuniary penalty at or near the top of the scale. I do however, consider a penalty towards the middle of the scale is appropriate. I am satisfied that a pecuniary penalty of 1136 penalty units (out of a maximum of 2200 penalty units) which is equivalent to the sum of $124,960.00, should be imposed.CONCLUSION AND ORDER For the reasons given above, I would make the following declaration and orders:4.A declaration pursuant to cl 2 of Sch 2, Pt 1 of the Occupational Health and Safety Act 1991 (Cth) on 15 November 2007, the respondent contravened cl 2(1) of Sch 2 of the Occupational Health and Safety Act 1991 by reason of it having breached s 16(1) of the said Act in that it failed to take all reasonably practicable steps to protect the health and safety at work of its employees by:(d)failing to provide and maintain a working environment, including plant and systems of work that were safe;(e)failing to ensure the safety at work of, and the absence of risk at work to the health of its employees in connection with the use and handling of plant and substances; and(f)failing to provide appropriate information, instruction, training and supervision to its employees in connection with the task of refuelling the rail saw. 5.Pursuant to cl 4 of Sch 2 of the said Act the respondent pay to the Commonwealth of Australia a penalty of 1136 penalty units, equating to $124,960.00.6.The respondent to pay the applicant's taxed costs, if not previously agreed. I will hear from counsel as to the terms of the final orders to be made.

Ratio Decidendi

Legal Principle Established

The respondent submits that the Court should consider the imposition of a pecuniary penalty in the range of $20,000.00 to $70,000.00.DECLARATION OF CONTRAVENTION AND DETERMINATION OF PECUNIARY PENALTY The OHS Act is relatively modern occupational health and safety legislation enacted in 1991. It reflects the more recent type of occupational health and safety legislation found in the various States of Australia, although there are some significant differences. The OHS Act primarily provides for civil enforcement of breach of duties imposed on employers, although criminal proceedings may be brought for a contravention of the Act in certain cases. Section 16 of the OHS Act imposes duties on employers in relation to their employees. Section 16(1) and s 16(2) provide in particular as follows:(1)An employer must take all reasonably practicable steps to protect the health and safety at work of the employer’s employees.Note: An employer who breaches subsection (1) may be subject to civil action or a criminal prosecution (see Schedule 2).(2)Without limiting the generality of subsection (1), an employer breaches that subsection if the employer fails to take all reasonably practicable steps:(a)to provide and maintain a working environment (including plant and systems of work):(i)that is safe for the employer’s employees and without risk to their health; and(ii)that provides adequate facilities for their welfare at work; and(b)in relation to any workplace under the employer’s control, to:(i)ensure the workplace is safe for the employees and without risk to their health; and(ii)provide and maintain a means of access to, and egress from, the workplace that is safe for the employees and without risk to their health; and(c)to ensure the safety at work of, and the absence of risks at work to the health of, the employees in connection with the use, handling, storage or transport of plant or of substances; and(d)to develop, in consultation with the employees of the employer, written health and safety management arrangements that will:(i)enable effective cooperation between the employer and the employees in promoting and developing measures to ensure the employees’ health, safety and welfare at work; and(ii)provide adequate mechanisms for informing the employees about the arrangements; and(iii)provide adequate mechanisms for reviewing the effectiveness of the arrangements; and(iv)provide adequate mechanisms for the variation of the arrangements in consultation with the employees; and(v)provide for a dispute resolution mechanism to deal with disputes arising in the course of consultations held under this Act (other than section 24) between the employer and the employees; and(vi)in the case of an employer who is required under section 34 to establish a health and safety committee—provide for the manner in which the health and safety committee is to be constituted and to operate; andNote:The establishment of health and safety committees is dealt with in section 34.(e)to provide to the employees, in appropriate languages, the information, instruction, training and supervision necessary to enable them to perform their work in a manner that is safe and without risk to their health.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 263 of 2008

JUDGE:	BARKER J
DATE OF ORDER:	20 JULY 2009
WHERE MADE:	PERTH

JUDGE:	BARKER J
DATE:	20 JULY 2009
PLACE:	PERTH