Comcare v Commonwealth of Australia [2007] FCA 662

FEDERAL COURT OF AUSTRALIA

Comcare v Commonwealth of Australia [2007] FCA 662

INDUSTRIAL LAW – Industrial safety, health and welfare – The Commonwealth – Penalties for breach of Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) – appropriateconsiderations – inadequacy of available sanctions as against Commonwealth

Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth), s 16(1), Sch 2, cll 2 and 4

Coochey v Commonwealth (2005) 149 FCR 312, cited

COMCARE v COMMONWEALTH OF AUSTRALIA ACD 38 OF 2005

MADGWICK J

4 MAY 2007

SYDNEY (HEARD AT CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACD 38 OF 2005

BETWEEN: COMCARE

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: MADGWICK J DATE OF ORDER: 4 MAY 2007

WHERE MADE: SYDNEY (HEARD AT CANBERRA)

THE COURT DECLARES THAT:

1. Between on or about 4 November 2004 and on or about 12 November 2004 at the Mount Bundey Training Area in the Northern Territory the respondent, acting through the Chief of the Defence Force as the employing authority in relation to members of the Australian Defence Force, contravened cl 2(1) of Sch 2 of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) by reason of its havingbreached s 16(1) of the said Act in that in the course of conducting the Subject 1 Corporals Course it: (a) failed to conduct the field phase of the Corporals Course during the wet season at a training area outside of the Northern Territory; and then having decided not to conduct the course outside of the Northern Territory: (b) failed to promulgate its own policies and procedures contained in the Defence Safety Manual (SAFETYMAN) and train relevant personnel about those procedures. (c) failed to provide a structured system of acclimatisation prior to the field phase of the Corporals Course. (d) did not effectively monitor the heat conditions and suspend the field phase of the course in accordance with the policies and procedures contained in SAFETYMAN according to the Wet Bulb Globe Thermometer readings or when participants began to experience symptoms of heat injury. (e) failed to introduce rest/work cycles as required by SAFETYMAN. (f) failed to provide rest periods in shaded areas as required by SAFETYMAN. (g) failed to provide an Advanced Medical Assistant to monitor participants for signs of heat injury , treat them and supervise more junior Medical Assistants. (h) failed to provide a fully qualified medical officer and resuscitation team where training was undertaken in extreme conditions. (i) failed to provide an ambulance with working air conditioning.