FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Pty Ltd [2012] FCA 449

THE COURT ORDERS THAT:

1.    The Court declares that:

On 19 March 2009, the First Respondent contravened Clause 2(1)(a) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached Section 16 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 was safe;

(b)    failing to ensure the safety at work of, and the absence of, risks at work to the health of its employees in connection with the placement and fixing of metal grid mesh at the BHP Billiton Iron Ore operated Mt Whaleback Facility (Facility) in the Pilbara region of Western Australia;

(c)    failing to provide appropriate information, instruction, training and supervision to its employees in connection with the placement and fixing of metal grid mesh at the Facility;

(d)    failing to adequately barricade and put in place warning signs in areas where it was possible for the grid mesh sheeting to fall;

(e)    failing to ensure that a sufficient number of, initially, temporary clips and, subsequently, permanent bolted clops attaching the grid mesh sheeting to the structural steel were available to be used to secure the grid mesh;

(f)    failing to ensure that the grid mesh sheeting was properly and adequately secured to ensure that it did not fall;

(g)    failing to adequately assess the hazard of grid mesh sheeting falling;

(h)    failing to ensure that formal or proper handover processes were in place to enable proper exchange of information between shifts; and

(i)    failing to ensure that adequately trained supervisors were in the workplace at all times.

2.    Pursuant to Clause 4 of Part 1 of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth), the First Respondent pay to the Commonwealth of Australia a pecuniary penalty in respect of the breach of Section 16(1) of that Act of 2,200 penalty units which equates to $242,000 within 45 days.

3.    The First Respondent pay the Applicant’s costs to be taxed if not otherwise agreed.

4.    The action against the Second Respondent be adjourned to Monday 21 October 2013 at 10.15 am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    In a tragic and unnecessary accident at work on 19 March 2009, Mr Wayne Arthur Moore was fatally injured. In 2010, the applicant (Comcare) instituted proceedings against the first and second respondents pursuant to the Occupational Health and Safety Act 1991 (Cth) (the Act) for contravention of the Act. (This Act was replaced by the Work Health and Safety Act 2011 (Cth) on 1 January 2012 (the 2012 Act)). On 19 April 2012, following the filing of an amended application and the parties reaching an agreement, I made orders against the first respondent for payment of the maximum pecuniary penalty under the Act within 45 days and orders for enforceable undertakings against the second respondent and other relief including declarations. These are my reasons for doing so.

THE FACTS

2    The following facts are agreed.

Standing

3    Comcare is and was, at all material times:

(a)    a body established pursuant to s 68 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act);

(b)    authorised to apply for relief pursuant to s 77 and cl 5(1) of Sch 2, Pt 1 of the Act.

4    The first respondent is and was, at all material times:

(a)    a company duly registered in accordance with the requirements of the Corporations Act 2001 (Cth) and capable of suing and being sued;

(b)    the holder of a licence in the Comcare scheme, granted pursuant to Pt VIII of the SRC Act;

(c)    a ‘non-Commonwealth licensee’, within the meaning of s 5 of the Act;

(d)    the employer of employees engaged to perform work at the premises known as the RGP4 site at the Mount Whaleback facility in the Pilbara region of Western Australia (Site) operated by BHP Billiton Iron Ore (BHP);

(e)    under a statutory duty, pursuant to s 16(1) of the Act, to take all reasonably practicable steps to protect the health and safety, at work, of its employees; and

(f)    pursuant to s 82(1) of the Act, subject to the Occupational Health and Safety (Safety Standards) Regulations 1994 (Cth). (Regulations).

The Contract

5    The first respondent entered into a contract (Contract) with BHP to undertake structural work (Works) at the Site commencing in February 2008.

6    The Contract was identified as ‘Construction Contract, Newman Hub Structural, Mechanical & Piping Works - Stockyard & Sample Stations’ (the Newman Hub).

7    Part of the Works involved the placement and fixing of metal grid mesh at height.

8    The duty pursuant to s 16(1) of the Act included a duty to take all reasonably practicable steps to:

1.    provide and maintain a working environment that was safe for the first respondent’s employees and without risks to their health (s 16(2)(a));

2.    ensure that the workplace was safe for employees and without risk to their health (s 16(2)(b)); and

3.    provide to all employees, inter alia, the instruction, training and supervision necessary to enable them to perform their work in a manner that was safe and without risk to their health (s 16(2)(e)).

The First Near Miss

9    At approximately 11.00 am on 12 March 2009 at the southern side of the SE7011 structure located at the Site, a chute was being installed in the tower as part of the Works when a sheet of unsecured grid mesh sheeting fell from its installed position and struck the ground about two metres from where an employee of the first respondent, Mr Mao Ouk, was standing (First Near Miss).

10    The supervisor on that day for the job was Mr Richard Hatton, an employee of the second respondent who was supervising the first respondent’s employees. He was assisted by Mr Brendan Humphreys a leading hand and acting supervisor. Mr Humphreys was employed by the first respondent.

11    The Deputy Construction Manager (an employee of the second respondent) Mr Warren Crocombe attended the Site shortly after the First Near Miss and Mr Hatton advised him of what had occurred.

12    Despite having a duty under the Act to report the First Near Miss to the Safety, Rehabilitation and Compensation Commission (Commission) the first respondent did not do so.

The Second Near Miss

13    At or about 10.00 am on 18 March 2009 at the CV751 structure at the Site Mr Vaughan Buckman, an employee of the first respondent, was working at ground level beside the structure. At that location the walkway on the CV751 structure was approximately two metres above the ground.

14    Mr Buckman left his work area for a short time and when he returned he found a section of grid mesh sheeting on the ground in close proximity to where he had been working (Second Near Miss).

15    The walkway, which was approximately two metres above the area of ground where the grid mesh sheeting was lying, had an opening of similar size and shape to the grid mesh sheeting on the ground.

16    Mr Buckman reported the Second Near Miss to Mr Edward Jenner, an employee of the second respondent who was supervising works at the SE7011 structure.

17    Mr Jenner did not report the Second Near Miss to his supervisor, consequently the first respondent did not report the Second Near Miss to the Commission.

The Fatal Incident

18    On 19 January 2009, the first respondent introduced a night shift operation at the CV702 bridge structure (Area) at the Site.

19    The introduction of the night shift resulted in persons who were not familiar with the Area working there.

20    The first respondent had not implemented adequate means of handover between the day shift and the night shift.

21    Mr Wayne Moore, an employee of the first respondent, was a member of a team which on 19 March 2009 was under the supervision of Mr Peter Neil Jackson.

22    Mr Jackson had worked in other areas of the Site but was unfamiliar with the work being undertaken in the Area.

23    Mr Jackson took his team for a walk around the Area and surrounds to familiarise them with their new workplace at the beginning of the night shift on 19 March 2009.

24    Mr Jackson, another employee, Mr Glen Gower and Mr Moore (collectively referred to as the Team), commenced work on the Area installing structural steel approximately ten metres above ground level at or about 10.30 pm.

25    To get to where they wanted to install a steel beam they had to cross over a barricade between two areas which did not bear any signage indicating its purpose, nor were any other warning signs present.

26    While the Team was working on fitting the beam, Mr Moore stood on unsecured grid mesh sheeting which gave way, causing him to fall and sustain fatal injuries (Fatal Incident).

27    The unsecured grid mesh represented a fall hazard as defined in Pt 13 of the Regulations.

Reasonably practicable steps

28    There were reasonably practicable steps which could have been taken by the first respondent which would have enabled the maintenance of a working environment, including plant and systems of work, that was safe for employees and without risk to their health.

29    The first respondent could, and should, have taken the following steps;

1.    ensured that a sufficient number of, initially, temporary clips and, subsequently, permanent bolted clips attaching the grid mesh sheeting to the structural steel were available to be used to secure the grid mesh;

2.    adequately barricaded and put in place warning signs in the areas where it was possible for the grid mesh sheeting to fall;

3.    ensured that the grid mesh sheeting was properly and adequately secured to ensure that it did not fall;

4.    adequately assessed the hazard of grid mesh sheeting falling;

5.    erected signs warning of the presence of unsecured grid mesh;

6.    following each of the First Near Miss and the Second Near Miss undertaken a review of the grid mesh placement and fixing system it was using at the Site;

7.    following each of the First Near Miss and the Second Near Miss put in place adequate training to ensure that all employees understood the nature of the risk of placing and fixing grid mesh at the Site;

8.    following each of the First Near Miss and the Second Near Miss reviewed working at height procedures to ensure that all employees were subject to appropriate measures to protect them from the risk of a fall when working at height;

9.    ensured that proper reporting procedures were in place in respect of incidents such as the First Near Miss and the Second Near Miss;

10.    ensured that there was an appropriate handover procedure operating to enable the proper exchange of information between shifts; and

11.    ensured that adequately trained supervisors were in the workplace at all times.

30    The parties agreed that it was appropriate for the Court to make a declaration of contravention under cl 2(1)(a) of Sch 2 of the Act to the effect that the first respondent contravened s 16(1) of the Act in the circumstances outlined (at [5]-[29] above.

31    The parties also agreed that it was appropriate for the Court to order the first respondent pay a pecuniary penalty order under cl 4 of Sch 2 of the Act following the above declaration of contravention. Pursuant to the table found in cl 4 of Sch 2 of the Act, the maximum pecuniary penalty is 2,200 penalty units.

32    The parties further agreed that it was appropriate for the Court to order the first respondent to pay:

1.    a pecuniary penalty of 2,200 penalty units (which equates to $242,000) under cl 4 of Sch 2 of the Act; and

2.    Comcare's costs to be taxed unless otherwise agreed.

MATTERS EMPHASISED BY COMCARE

33    The conduct of the first respondent that constituted the contravention was:

1.    the failure to provide and maintain a working environment, including plant and systems of work, that were safe;

2.    the failure to ensure the safety at work and the absence of risks at work to the health of its employees in connection with the placement and fixing of metal grid mesh at the Site;

3.    the failure to provide appropriate information, instruction, training and supervision to its employees in connection with the placement and fixing of metal grid mesh at the Site;

4.    the failure to adequately barricade and put in place warning signs in areas where it was possible for the grid mesh sheeting to fall;

5.    the failure to ensure that a sufficient number of, initially, temporary clips and, subsequently, permanent bolted clips for attaching the grid mesh sheeting to the structural steel were available to be used to secure the grid mesh;

6.    the failure to ensure that the grid mesh sheeting was properly and adequately secured to ensure that it did not fall;

7.    the failure to adequately assess the hazard of grid mesh sheeting falling;

8.    the failure to ensure that a formal or proper handover process was put in place to enable the proper exchange of information between shifts; and

9.    the failure to ensure that adequately trained supervisors were in the workplace at all times.

THE RESPONDENTS’ PERSPECTIVE

34    The respondents have jointly submitted to the Court that the maximum penalty is appropriate. The first respondent has accepted responsibility for Mr Moore’s death and has apologised to his family. The then General Manager of Human Resources travelled to the home of Mr Moore’s parents in Kyogle in New South Wales and informed them personally of the fatality shortly after it occurred. There was a further attendance at the home later in 2009 to explain the outcome of the investigation which was conducted in to the fatality.

35    The first respondent repeated its apology in its written submissions and in open court to the family of Mr Moore and formally acknowledged that it was a failure of the systems for which it was responsible as the contracting company to BHP that led to the tragic death of Mr Moore. A director of the first respondent, Mr Brendan Petersen, attended the hearing on behalf of the first respondent as a mark of respect for the deceased and to demonstrate the seriousness with which the first respondent regards the events.

36    Some undisclosed financial and other assistance to Mr Moore’s family has been provided. I have not taken this into account at all but I accept that the officers and those who control the company are genuinely deeply regretful of the incident and its consequences.

37    The first respondent has submitted to the Court, and I accept, that it did take immediate steps to protect the health and safety of other workers at the Newman Hub including:

(a)    immediately ceasing all work at the Newman Hub in order to inspect all site structures to ensure that no other hazards were present, including checking that all grid mesh was secured correctly and that a sufficient number of clips were available;

(b)    conducting Job Hazard Analysis retraining and re-inductions on 22 March 2009;

(c)    conducting barricading and signage training sessions on 28 and 29 March 2009;

(d)    conducting work force and staff re-induction training on 31 March 2009;

(e)    conducting a Working at Heights toolbox session on 5 April 2009;

(f)    developing a new grid mesh installation procedure and rolling it out to relevant site personnel on 7 April 2009;

(g)    conducting fatigue management training on 8 April 2009;

(h)    conducting use of hand tools training session (a targeted requirement for huck bolting of grid mesh) on 12 April 2009;

(i)    conducting an exclusive control toolbox session on 19 April 2009; and

(j)    conducting dropped objects training on 24 April 2009.

38    The first respondent has subsequently taken further steps to improve health and safety at its construction sites including:

(a)    conducting a review in all the operations of its policies and procedures in relation to the installation and removal of grid mesh;

(b)    conducting a review of its policies and procedures in relation to the use of barricading and hand over of shifts;

(c)    conducting a review of its training of supervisors in relation to hand over of shifts; and

(d)    reinforcing training in relation to reporting of incidents.

39    In addition, I take into account that the first respondent has cooperated with Comcare in relation to the matter, having accepted responsibility for what occurred and entering an early plea in relation to the fatality.

40    In particular, the first respondent has:

(a)    admitted the allegations relating to the fatality in its defence, and subsequently in its amended defence filed in response to the amended statement of claim;

(b)    entered into an Enforceable Undertaking (EU) with Comcare;

(c)    agreed to the statement of agreed facts;

(d)    agreed to the proposed declaration; and

(e)    agreed to submit, jointly with Comcare, that the Court impose upon the first respondent the maximum penalty of 2,200 penalty units for a contravention of item 2 of Sch 2 of the Act, being $242.000.

CONSIDERATION

41    It is unnecessary to discuss the cases concerning the reasons why declarations might be imposed by a court. The provisions of the Act (cl 2(1) of Sch 2 of the Act) make it mandatory in circumstances of a breach such as the present that the Court impose declarations. In any event, it would be proper to do so.

42    As to the appropriateness of the penalty, although the respondents may have done much since this tragedy occurred, the maximum penalty itself is insignificant compared with the loss of a human life. A large corporation might be expected to pay substantially more than the prescribed maximum in the circumstances of this event. Additionally there would be much to be said for the payment to be received by the dependents rather than the revenue. But these are both considerations for regulator and the legislature. In fact under the 2012 Act, the penalties have greatly increased.

43    In relation to penalty generally, as I noted in Comcare v Linfox Australia Pty Ltd (2010) 198 IR 160 (at [38]), the role of the Court is by no means one of mere rubber stamping when it comes to agreed penalty but a commonsense approach is to take the agreed figure and give consideration to whether it is within the range of appropriate figures: see, for example, Gyles J in Comcare v National Gallery of Australia (2007) 98 ALD 67 (at [8]) and the discussion by French J, as his Honour then was, in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc (1999) 95 FCR 114 (at [37]-[39]). In Comcare v Linfox I also discussed the approach taken by Madgwick J in Comcare v Commonwealth of Australia (2007) 163 FCR 207 (at [120] and [123]). I repeat what I said in that case (at [40]-[44]) that:

[40]    … the following matters ‘provided useful and logical general guidance as to the approach to be taken in consideration of penalties under the Act:

(i)    the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety;

(ii)    it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable;

(iii)    the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer;

(iv)    the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;

(v)    a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision;

(vi)    general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act;

(vii)    employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety;

(viii)    regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;

(xi)    the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;

(x)    the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

[41]    The view taken by Madgwick J in that case (at [125]) was that the maximum penalty would be appropriate where there had been a "conscious decision to flout the law". That approach was followed by North J in Comcare v Commonwealth (2009) 184 IR 441 (at [69]-[71]).

[42]    Similarly in Comcare v John Holland Rail Pty Ltd (2009) 188 IR 415, Barker J said (at [135]-[136]) speaking of the OHS Act:

[135]    Object (g) anticipates that where obligations are not met, effective remedies may be imposed through both the use of civil remedies and, in serious cases, criminal sanctions. To put the matter directly, the inclusion of Sch 2 in the OHS Act emphasises a legislative intention that contravention of the occupational, health and safety principles and duties created by the Act should be sanctioned, in appropriate cases, by civil or criminal orders.

[136]    In the present case, the purpose of a civil pecuniary penalty, if imposed, is to deter the particular offender from offending again, as well as having the effect of generally deterring other employers from acting in a similar way. The imposition of a pecuniary penalty may be considered to have the advantage of reminding a particular employer of the importance of complying with the duties imposed on them by the OHS Act, as well as reminding other employers of the potential consequences should they fail to comply with the requirements of the Act. The imposition of an appropriate penalty is also calculated to give the community, and in particular relevant employees, confidence that the OHS Act is taken seriously.

[43]    His Honour continued on the topic of assessing the quantity of a pecuniary penalty (at [137] and [141]-[143]) to say:

[137]    When it comes to assessing what level of pecuniary penalty should be imposed, the courts have over a number of years, in a number of different regulatory settings, developed criteria that are considered relevant to the formulation of the quantum of a civil pecuniary penalty. Accordingly, in Comcare v Commonwealth (2007) 163 FCR 207, 162 IR 407, Madgwick J at [116] emphasised that the overriding principle in assessing penalty is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances.

...

[141]    With respect, like North J, I agree with the observations of Madgwick J and consider these are all relevant criteria to the assessment of a civil pecuniary penalty under the OHS Act.

[142]    However, I also concur with North J, in his emphasis of the overriding caution expressed by Flick J in Comcare v Post Logistics Australasia Pty Ltd (2008) 178 IR 200, where His Honour said that care must be taken to ensure that any listing of potentially relevant considerations do not themselves become an impermissible substitute for considering the terms of the legislation in issue or an unnecessary constraint upon a discretion conferred in otherwise unconfined terms.

[143]    I should also add that I consider it is relevant to the assessment of a pecuniary penalty to acknowledge, where it is the case, an admission of contravention and particularly an early admission by a respondent of its liability to the imposition of a remedy under the OHS Act. Where, for example, a respondent in a proceeding such as these early on acknowledges fault and willingness to accept a declaration of contravention, then the respondent will ordinarily be entitled to additional consideration in the assessment of the penalty. In some contexts this process is termed giving credit or "discount" on penalty. There is no statutory entitlements to such credit or a discount but it serves public policy in that it encourages a respondent to act responsibly, and may achieve a reduction in the public resources that would otherwise be required to prosecute the proceedings against the respondent

[44]    Finally, it is to be noted (as Barker J did) that Flick J observed in Post Logistics Australasia Pty Ltd (at [39]) that penalties are not imposed by reference to penalties in other cases being considered a benchmark. His Honour said:

[39]    A final matter of principle should also be noted. It is inappropriate to fix a penalty simply by reference to the quantum of a penalty imposed in another case. It was thus understood to be common ground between the parties to the present proceeding that it was not appropriate to regard (in particular) the penalty of $198,000 in Comcare v Commonwealth as itself fixing a "benchmark" against which other penalties are to be determined in cases involving death. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285, Burchett and Kiefel JJ observed (at 295):

A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties: Trade Practices Commission v Axive Pty Ltd [(1994) ATPR 41-368] (at 42,795). There should not be such an inequality as would suggest that the treatment meted out has not been even-handed: cf the criminal law case Lowe v The Queen (1984) 154 CLR 606. However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations.

Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The point was well made by Spender J in Trade Practices Commission v Annand and Thompson Pty Ltd [(1987) ATPR 40-772] (at 48,394) when he said:

Each case must, of course, be viewed on its own facts and facts may be infinite in their variety.

It follows, as his Honour also said, that "[t]he quantum of penalties imposed in other cases can seldom be of very much direct assistance".

A comparison of the facts in Comcare v Commonwealth and the facts in the present proceeding only serves to underline the point there being made by Burchett and Kiefel JJ (and by Spender J) — namely that the facts and circumstances of individual cases are infinitely diverse. The quantum of any penalty to be imposed must necessarily be fixed by reference to the peculiar facts arising in each case as and when they arise.

44    I accept the submission from Comcare that the conduct of the first respondent and the consequences to the deceased person should place this matter at the highest level so that the maximum penalty should apply. The seriousness of the circumstances particularly arise out of:

1.    the nature of the injuries which Mr Moore sustained and which led to his death;

2.    there had been two near miss incidents involving the fall of grid mesh from height in the same week clearly of a very similar nature to the event which brought about Mr Moore’s death;

3.    no action was taken after those near miss incidents;

4.    there was no adequate reporting procedure in respect of those incidents;

5.    there were measures open to the first respondent that were reasonably practical to implement and would have prevented Mr Moore’s untimely and tragic death; and

6.    the absence of adequate training in relation to working at heights and the fixing of grid mesh, particularly given the fact of the near miss incidents was also relevant to the seriousness of the event.

45    The maximum penalty has been imposed. The purpose and effect of the penalty in intended to:

(a)    specifically deter the first respondent from engaging in unsafe work practices that expose employees to risk;

(b)    generally deter other employers by compelling attention to occupational health and safety generally, and to ensure that employees while at work will not be exposed to risk;

(c)    take account of the aggravating feature that the risk of injury or death in this instance should have been previously identified and adequately addressed particularly having regard to the near miss incidents;

(d)    reflect the seriousness of the consequence of the injuries sustained by Mr Moore. While the fact that the injuries were fatal does not of itself dictate the seriousness of the offence or the amount of the penalty, the occurrence of serious injury does manifest the degree of the seriousness of the relevant detriment to safety;

(e)    reflect the view that this was not a situation involving inadvertence on the part of the employee or a momentary lapse of supervision but rather reflected a more fundamental systematic failure by the first respondent; and

(f)    have regard to the levels of the maximum penalties set by the legislature as the time as indicative of the seriousness of the breach under consideration. In this instance, the maximum civil penalty is 2,200 penalty units which equates to $242,000. As indicated (at [1]), the legislation on which this proceeding is based has been replaced by the 2012 Act. The maximum penalties under the 2012 Act are significantly higher.

THE SECOND RESPONDENT

46    According to para 4 and para 5(a) of the amended statement of claim, at all material times the second respondent was an employer within the meaning of s 5 of the Act in that it was a body corporate, the holder of a licence granted pursuant to Pt VIII of the SRC Act and a non-commonwealth licensee within the meaning of s 5 of the Act. It was also the employer of employees at the Whaleback Site operated by BHP.

47    The second respondent, at all material times, owned all of the shares in the first respondent, controlled it and carried on a business which, in part, involved employing employees and providing them to other companies which it controlled including the first respondent. It provided some of its employees to the first respondent to allow or assist it to perform the Contract and Works and was remunerated by and received dividends from or otherwise received benefits from the first respondent.

48    Although no direct relief has been imposed by way of court orders against the second respondent, I was informed by both counsel that the second respondent has offered and Comcare has accepted an EU within the meaning of the Act. The first respondent is also a party to the EU, as noted.

49    In Comcare v Commonwealth of Australia (SAD 110/2010) Besanko J made orders on 23 March 2011 adjourning the proceedings for 12 months after Comcare accepted an EU from the Australian Customs and Border Protection Service. These proceedings concerned an incident in December 2008 when a customs employee slipped on glue on a concrete floor and fractured her arm where contractors had been laying tiles.

50    In Comcare v Australian Air Express Pty Ltd (NSD 520/2011) Buchanan J adjourned a directions hearing for 18 months to August 2013 when Comcare accepted an EU from Australian Air Express Pty Ltd after one of its employees was injured at work.

51    In accordance with practices previously adopted by this Court, the parties have sought and I have agreed to have the action against the second respondent adjourned for a period of 18 months to allow the respondents to fulfil their obligations under the EU and for Comcare to be satisfied that this has occurred. Comcare has foreshadowed that it envisages that if the EU obligations are met, then the action will be discontinued against the second respondent which would thereby dispose of the entire matter.

52    I accept that this course is now both conventional and appropriate.

CONCLUSION

53    For reasons set out above, I made the following orders on 19 April 2012:

1.    The Court declares that:

On 19 March 2009, the First Respondent contravened Clause 2(1)(a) of Schedule 2, Part 1 of the Occupational Health and Safety Act 1991 (Cth) by reason of it having breached Section 16 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 was safe;

(b)    failing to ensure the safety at work of, and the absence of, risks at work to the health of its employees in connection with the placement and fixing of metal grid mesh at the BHP Billiton Iron Ore operated Mt Whaleback Facility (Facility) in the Pilbara region of Western Australia;

(c)    failing to provide appropriate information, instruction, training and supervision to its employees in connection with the placement and fixing of metal grid mesh at the Facility;

(d)    failing to adequately barricade and put in place warning signs in areas where it was possible for the grid mesh sheeting to fall;

(e)    failing to ensure that a sufficient number of, initially, temporary clips and, subsequently, permanent bolted clops attaching the grid mesh sheeting to the structural steel were available to be used to secure the grid mesh;

(f)    failing to ensure that the grid mesh sheeting was properly and adequately secured to ensure that it did not fall;

(g)    failing to adequately assess the hazard of grid mesh sheeting falling;

(h)    failing to ensure that formal or proper handover processes were in place to enable proper exchange of information between shifts; and

(i)    failing to ensure that adequately trained supervisors were in the workplace at all times.

2.    Pursuant to Clause 4 of Part 1 of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth), the First Respondent pay to the Commonwealth of Australia a pecuniary penalty in respect of the breach of Section 16(1) of that Act of 2,200 penalty units which equates to $242,000 within 45 days.

3.    The First Respondent pay the Applicant’s costs to be taxed if not otherwise agreed.

4.    The action against the Second Respondent be adjourned to Monday 21 October 2013 at 10.15 am.

Associate:

Dated:    2 May 2012