Comcare v Transpacific Industries Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Comcare v Transpacific Industries Pty Ltd [2015] FCA 500

Citation: Comcare v Transpacific Industries Pty Ltd [2015] FCA 500
Parties: COMCARE v TRANSPACIFIC INDUSTRIES PTY LTD
File number: WAD 486 of 2013
Judge: BARKER J
Date of judgment: 22 May 2015
Catchwords: INDUSTRIAL LAW – admitted contraventions of ss 16 and 17 of the Occupational Health and Safety Act 1991 (Cth) – form of declarations – whether respondent liable to more than one pecuniary penalty – whether conduct “same conduct” pursuant to Sch 2 cl 7 of the Act – quantity of civil pecuniary penalty – particular circumstances – seriousness of breach – deterrence – mitigating factors
Legislation:

Building and Construction Industry Improvement Act 2005 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth)
Occupational Health and Safety Act 1991 (Cth) s 3, s 3(g), s 5, s 16(1), s 17, s 77, s 82(1), Sch 2 Pt 1 cl 2(1), cl 2(1)(a), cl 2(1)(b), cl 4, cl 5(1), cl 7
Safety Rehabilitation and Compensation Act 1988 (Cth) s 68, Pt V
Trade Practices Act 1974 (Cth) s 48, s 76(1), s 76(3)
Work Health and Safety Act 2011 (Cth)
Work Health and Safety (Transitional and Consequential Provisions) Act 2011 (Cth) Sch 2

Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth)

Cases cited: Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (No 2) [2002] FCA 559; (2002) 190 ALR 169
Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336; [2014] ATPR 42-469
Australian Competition and Consumer Commission v Rural Press Limited [2001] FCA 1065; (2001) ATPR 41‑833
Australian Competition and Consumer Commission v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998; [2014] ATPR 42-481
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 207
Comcare v Commonwealth of Australia [2012] FCA 1419; (2012) 132 ALD 480
Comcare v John Holland Pty Ltd [2012] FCA 449
Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515; (2009) 191 IR 223
Comcare v John Holland Pty Ltd [2014] FCA 1191
Comcare v John Holland Rail Pty Ltd [2009] FCA 771; (2009)188 IR 415
Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987; (2008) 178 IR 200
Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; (2012) 207 FCR 178
Comcare v The Commonwealth of Australia [2010] FCA 1331; (2010) 201 IR 93
Comcare v Transpacific Industries Pty Ltd [2012] FCA 90; (2012) 129 ALD 486
Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59
NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285
Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213; (2002) 118 FCR 236
Trade Practices Commission v CSR Ltd (1991) ATPR 41‑076
Trade Practices Commission v Simpson Pope Ltd (1980) 30 ALR…
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Details
Case
[2015] FCA 500
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Comcare, the respondent, brought proceedings against Transpacific Industries Pty Ltd, the applicant, concerning contraventions of the Occupational Health and Safety Act 1991 (Cth). The central dispute revolves around Transpacific’s alleged failures to comply with sections 16 and 17 of the Act, which mandate the employer to take all reasonably practicable steps to protect the health and safety of its employees and others at or near its workplaces. Specifically, the case highlights Transpacific's neglect in maintaining its garbage collection truck's safety standards, leading to severe consequences.

The legal issues before the court included whether Transpacific was liable for multiple pecuniary penalties for the same conduct and the appropriate quantum of penalty to be imposed. The court had to determine if the breaches constituted "same conduct" under Schedule 2, clause 7 of the Act and consider the particular circumstances, seriousness of the breach, and deterrence value of the penalty. Additionally, the court was required to assess mitigating factors in determining the appropriate penalty.

The court's reasoning focused on the gravity of Transpacific's breaches and the need for a penalty that would reflect the seriousness of the violations and provide both general and specific deterrence. The court acknowledged Transpacific's admissions of the breaches and considered the systemic issues within the company's maintenance and oversight processes. The court found that Transpacific’s failures were not isolated incidents but part of a broader pattern of negligence. The court ultimately determined that the breaches were severe and warranted a penalty at the upper end of the range for each of the four periods specified.

In conclusion, the court ordered Transpacific Industries Pty Ltd to pay a total pecuniary penalty, reflecting the gravity of its breaches and the need for deterrence. The penalty was intended to assure the community and employees that breaches of the occupational health and safety regime would be taken seriously.

Orders

Orders of the court

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Background

Background to the litigation

The parties have agreed the facts upon which the Court should consider penalty and to that end filed a statement of agreed facts on 28 November 2014. The statement of agreed facts is received pursuant to the Evidence Act 1995 (Cth), for the purposes of these proceedings and for no other purpose. What follows is an account of the facts as contained in that statement. It has been edited to conform with the description of the parties, the relevant legislation and other terms as used in these reasons.Standing Comcare is and was at all material times:(1)a body established pursuant to s 68 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act); and(2)authorised to apply for relief pursuant to s 77 and cl 5(1) of Pt 1 of Sch 2 of the OHS Act. Transpacific Industries is, and was, at all material times:(1)a company duly registered in accordance with the requirements of the Corporations Act 2001 (Cth) and capable of suing and being sued;(2)the holder of a licence in the Comcare scheme, granted pursuant to Pt V of the SRC Act;(3)a “non-Commonwealth licensee”, within the meaning of s 5 of the OHS Act;(4)the employer of employees engaged to perform, inter alia, the task of driving rubbish collection trucks engaged in the collection and disposal of rubbish; (5)under a statutory duty, pursuant to s 16(1) of the OHS Act, to take all reasonably practicable steps to protect the health and safety, at work, of its employees; (6)under a statutory duty, pursuant to s 17 of the OHS Act, to take all reasonably practicable steps to ensure that persons, at or near a workplace under Transpacific’s control, who are or were not Transpacific’s employees or contractors, are or were not exposed to risk to their health and safety from the conduct of Transpacific’s undertaking; and(7)pursuant to s 82(1) of the OHS Act, subject to the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth) (Regulations).Background Transpacific is the owner of the business known as Cleanaway, which undertakes garbage collection and disposal services throughout the Perth metropolitan area. Transpacific was, at all material times, the owner and operator of an Iveco Acco truck, Registration 1DKX 647, which operated as a garbage collection and disposal truck, and was one of a number of such trucks owned and operated by Transpacific in the Perth Metropolitan Area (Transpacific fleet). The truck, when being used for the purposes of Transpacific’s business and undertaking, was a workplace for the purposes of the OHS Act. The truck was delivered, new, to Transpacific in August 2010. The truck:(1)weighed approximately 12 tonnes empty, and approximately 23 tonnes when fully loaded; and(2)was approximately 2.5 m wide. After delivery, the truck was maintained by Transpacific, and was serviced approximately every 100 hours of the operation of its engine. The engine hours recorded for each truck in the Transpacific fleet were regularly entered by employees of Transpacific into a computer program called JDE (JDE program). The JDE program generated a reminder when a truck required servicing, and prompted Transpacific to create a work order for the servicing of that truck.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Comcare says, in any event, as noted above, mitigating factors are peripheral against the need for a penalty to represent the Court’s expression of the seriousness of the breaches and to provide deterrence – both general and specific – and assure the community and employees in particular, that breaches of the OHS regime are taken seriously.Conclusion For the above reasons, Comcare submits that the Court ought to exercise its discretion so as to impose a penalty at the upper end of the range for each of the four periods the subject of the declarations.TRANSPACIFIC’S SUBMISSIONS ON PENALTY As noted above, Transpacific admits the substance of the case brought against it by the Comcare. Transpacific admits that it breached ss 16(1) and 17 of the OHS Act by:(1)failing to take all reasonably practicable steps to protect the health and safety at work of its employee, Mr Meotti; and(2)failing to take all reasonably practicable steps to ensure that persons who were not its employees, and who were near the truck, which was owned and operated by Transpacific in the course of its business, were not exposed to risk to their health or safety arising from the operation of the truck. Transpacific admits that, in particular, it breached ss 16(1) and 17 of the Act by:(1)failing to take all reasonably practicable steps to provide and maintain a work environment, including plant, that was safe for Mr Meotti, and posed no risk to his health and safety;(2)failing to take all reasonably practicable steps to ensure that the control arms on the automatic slack adjusters on the truck’s front brakes were securely fastened to fixed points;(3)failing to take all reasonably practicable steps to ensure that the front brakes of the truck were properly adjusted, and that their operation was not compromised, particularly in an emergency;(4)failing to take all reasonably practicable steps to ensure that all mechanics whom it employed, to service and repair trucks in its fleet, were provided with and used a standard gauge to measure the thickness of the trucks’ brake pads;(5)failing to provide a means for the systematic review and analysis of the recorded thicknesses of the brake pads of trucks in its fleet;(6)failing to take all reasonably practicable steps to properly supervise and oversee the servicing of trucks in its fleet by mechanics whom it employed; and(7)failing to employ a formal system of monitoring the performance of those of the mechanics whom it employed, who had received warnings for poor work practices. In addition, Transpacific admits that, between 2 and 19 April 2011, between 21 April and 8 May 2011, and between 9 and 13 May 2011, it contravened cl 2(1)(a) and cl 2(1)(b) of Sch 2, Pt 1 of the OHS Act, by breaching ss 16(1) and 17. Transpacific admits that it breached ss 16(1) and 17 of the OHS Act by:(1)failing to take all reasonably practicable steps to protect the health and safety at work of its employees; and(2)failing to take all reasonably practicable steps to ensure that persons who were not its employees, and who were near the truck, were not exposed to risk to their health or safety arising from the operation of the truck.

Ratio Decidendi

Legal Principle Established

Comcare submits the following inferences and conclusions are available to the Court as a result of the statement of agreed facts:(1)it was foreseeable that the truck would develop the brake defects (or something similar), as set out at [53] and [61] above;(2)the brake defects were present at the time of the fatal incident, as set out at [41], [42] and [47] above;(3)the brake defects were present at but were not identified nor were they rectified during the truck’s last service on 21 February 2011 or otherwise prior to the fatal incident, as set out at [57]‑[61] above;(4)Mr Henderson, the mechanic who failed to identify and/or rectify the brake defects on 21 February 2011, had received a written warning on 17 December 2010 for failing to meet and record all vehicle defects during his inspections, as set out at [76] above;(5)Transpacific had no formal system in place to supervise or monitor Mr Henderson’s work following his written warning, as set out at [78] above;(6)the brake defects were a cause of, or at least contributed to, the fatal incident, as set out at [41]‑[43] and [45]‑[47] above; (7)it was foreseeable that the brake defects (or similar) would be a cause of or contribute to a serious traffic accident, such as that which occurred, as set out at [42]‑[43] above;(8)the brake defects were not identified and/or rectified during any of the services carried out on the truck after the fatal incident despite each of those services being carried out by a different mechanic, as set out at [52]-[53] and [611] above; (9)but for the improvement notice issued by Comcare, Transpacific is unlikely to have identified or rectified the brake defects, as set out in [55] and [56] above; (10)Transpacific’s instructions to its mechanics after the fatal incident lacked sufficient specificity, in that the work orders to which each of the three mechanics worked merely required them to “check and adjust brakes”, as set out at [52] above;(11)Transpacific lacked any system by which the servicing of its vehicles was overseen, supervised or audited, as set out at [67] above;(12)Transpacific lacked any system to either:(a) accurately measure and record brake pad thicknesses; or(b) review and/or analyse recorded changes in brake pad thicknessesas set out at [71]-[73] above; and(13)accurate measurement and recording of the truck’s brake pad thicknesses over time and proper analysis of such thicknesses would have identified the fact that the brake pads were, apparently, not wearing as they should which would have allowed Transpacific to carry out proper investigations to determine the basis for that irregularity, as set out at [74] above.Submissions as to declarations Comcare submits (and say Transpacific agrees by its consent to the making of the four declarations) that the statement of agreed facts provides a proper basis for the Court to declare that Transpacific breached both ss 16(1) and 17 of the OHS Act on each of the four time periods identified.