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