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Independent review of the Safety, Rehabilitation and Compensation Act 1988
Submission by the Construction, Forestry and Maritime Employees Union, Construction and
General Division
Background
1. On 24 June 2024, the federal government appointed Justine Ross, Robin Creyke AO and Greg
Isolani as the independent panel (Panel) to undertake a comprehensive review of the Safety,
Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and shortly thereafter published
terms of reference for the review (Terms of Reference).
2. On 23 October 2024, the Panel published an issues paper (Issues Paper) and invited
interested parties to make written submissions in response to the questions in the Issues Paper
by 2 December 2024, which deadline was subsequently extended to 20 December 2024.
3. The Construction and General Division of the Construction, Forestry and Maritime
Employees Union (CFMEU C&G) welcomes the opportunity to make a submission to the
review.
4. CFMEU C&G is the principal union for construction workers in Australia. The SRC Act and
the Comcare scheme which it establishes apply to our members, including those who are
employed by self-insured licensees such as the Australian Capital Territory government and
John Holland Pty Ltd. They also affect the interests of our members who are employed by
subcontractors engaged by self-insured licensees, as well as Commonwealth authorities such
as ASC Pty Ltd (formerly the Australian Submarine Corporation).
5. Other interested parties have made substantial written submissions in response to each of the
discussion questions in the Issues Paper that CFMEU C&G will not repeat, save to reiterate
the following comments of Jill Hall MP in the second reading debates for the OHS and SRC
Legislation Amendment Bill 2005 (Cth) (OHS&SRC Bill), almost 20 years ago:
As somebody who has actually worked in the area of rehabilitation, with workers who
have been injured and were covered by Comcare, I find it very disturbing that what
was once I think possibly the best scheme available in Australia for workers injured
at work has now been changed to such an extent that it does not provide the
protection that workers need and deserve. It actually works against the rehabilitation
process. 1
6. Rather, this submission addresses only item 3(b) of the Terms of Reference — whether non-
Commonwealth licensees should continue to have coverage under the Work Health and Safety
Act 2011 (Cth) (WHS Act) in light of substantive national harmonisation of work health and
safety laws — and questions 21 and 22 in the Issues Paper:
a. What are the implications for non-Commonwealth licensees in maintaining or ending
the transitional period for their coverage under the WHS Act?
b. Should self-insured licensees be regulated by Comcare under Commonwealth WHS
laws, or state and territory WHS laws and regulators? Please give reasons.
1
Hansard, Commonwealth House of Representatives, 29 March 2006, p 181.
7. The continued application of the WHS Act to private corporations is a misguided relic from
the misguided Work Choices era. It no longer makes sense in light of the substantive
harmonisation of work health and safety legislation since 2012. There is no longer any good
reason to retain this arrangement, if there ever were. It should be abandoned. The transitional
period should come to an end, with the consequence that all self-insured licensees are
regulated by state and territory WHS laws and regulators, not only those who have joined the
Comcare scheme since 2012.
8. Accordingly, the answers to questions 21 and 22 are:
a. What are the implications for non-Commonwealth licensees in maintaining or ending
the transitional period for their coverage under the WHS Act?
Maintaining the “transitional” period for the coverage of non-Commonwealth
licensees under the WHS Act has permitted them to abuse that status to undermine the
capacity of union officials and HSRs to represent workers in relation to health and
safety. This has involved the deliberate fragmentation of OHS rights and duties within
individual sites and enterprises by the selective application of the WHS Act.
Given the substantive harmonisation of Commonwealth, state and territory OHS
legislation, not only between the model law jurisdictions but also in Victoria, if the
“transitional” period were ended, there would be no or minimal change to the
substantive rights and duties of non-Commonwealth licensees, their officers and
employees, and so the meaningful practical implications of taking this step would be
minimal or negligible.
b. Should self-insured licensees be regulated by Comcare under Commonwealth WHS
laws, or state and territory WHS laws and regulators? Please give reasons.
Self-insured licensees should continue to be regulated under state and territory WHS
laws and by state and territory WHS regulators. Placing new entrants in the Comcare
scheme under the regulatory jurisdiction of Comcare in OHS matters would lead to an
unreasonable strain on Comcare’s finite and already strained resources, and would be
likely to lead to those entities exploiting their separate status to achieve industrial
objectives at the expense of workplace health and safety.
Further, where it is impractical or impossible for entities in the Comcare scheme to be
directly regulated by state and territory WHS laws and regulators (for example,
current or former Commonwealth authorities such as ASC Pty Ltd), the existing
scheme for cooperation between Comcare and state and territory regulators should be
strengthened to ensure that, where the strains on Comcare’s finite resources prevent it
from responding to health and safety issues in an urgent or timely manner, state and
territory regulators may act swiftly and decisively in Comcare’s place, without
unnecessary bureaucratic delays.
In any case, Comcare should also have significant additional resources allocated to it
to enable it to perform its investigative and enforcement functions with urgency and
to respond to imminent safety risks in a timely manner, wherever they arise. Any
regulatory barriers that undermine Comcare’s capacity to take such action should also
be removed.
History of WHS Act coverage of non-Commonwealth licensees
9. The history of the application of the WHS Act to non-Commonwealth licensees throws into
sharp relief how anomalous that arrangement is, and demonstrates how overdue it is that it
should be brought to an end.
10. That arrangement originated in the Productivity Commission’s 2004 report on National
Workers’ Compensation and Occupational Health and Safety Frameworks. One of the (many)
dubious recommendations made in that report was that the Occupational Health and Safety
(Commonwealth Employment) Act 1991 (Cth) (OHS(CE) Act) be expanded so that private
corporations licensed under the Comcare scheme could opt to be covered by it instead of state
or territory OHS legislation.
11. The discussion leading to this recommendation is long on assertion and short on evidence, or
even a coherent statement of the need for reform. 2 The Productivity Commission emphasises
above all else the “administrative savings for multi-state firms” that it anticipates will result
from its proposal. It also gestures towards the “greater coordination and feedback between the
workers’ compensation and OHS regimes” that it asserts would also, somehow, arise. The
Productivity Commission then embraces the race to the bottom in OHS regulation that it
evidently intended to bring about by permitting private companies to choose to opt out of
scheme coverage:
By providing choice for firms, it would also introduce an element of competition with
the State and Territory OHS regimes, strengthening the incentive for reform and
encouraging greater national uniformity under the arrangements outlined earlier. 3
12. The Productivity Commission then repeats the vague assertions that this proposal would
result in “improved data monitoring, feedback and reform”, and then, content it has made its
case, moves on to address some of the (obvious) drawbacks of the proposal. In other words,
those are the Productivity Commission’s only arguments in support of allowing private
companies in Comcare to opt out of state and territory OHS regulation and into the
Commonwealth scheme.
13. Strikingly, the Productivity Commission does not refer to a single submission of any
interested party as advancing or even supporting this proposal, or to any evidence which
would require or justify it. This contrasts with, for example, its preceding recommendation to
abolish the tripartite structure of the National Occupational Health and Safety Commission, in
what it hilariously describes as “the cooperative approach” for a national OHS framework.
14. Before moving to the Productivity Commission’s dismissal of the obvious drawbacks of its
proposal, it is worth pausing to note that the predicted advantages have failed to materialise.
For example, the suggestion that allowing private corporations to opt in to Commonwealth
OHS regulation would lead to “improved reform” is powerfully undermined when it is
observed that, in the present review, unions are proposing many of the same urgent and
necessary reforms to Comcare — for example, time limits on liability decisions and deemed
liability after a prescribed period — that unions previously proposed to the Productivity
Commission review, more than 20 years ago.
2
See at [4.3] of the report (“The Commission’s proposals for a national OHS framework”) and
especially at pp 101–3 (“The alternative national approach”).
3
At pp 102–3.
15. As to the obvious drawbacks of the proposal, the Productivity Commission first dismisses the
advice of the Australian Government Solicitor (prior to the High Court’s Work Choices
decision) about the constitutional barriers to its proposal. Next, it acknowledges that “there
will be some difficulties arising from firms operating under different OHS regimes in the
same location”, which it immediately dismisses as not “significant enough to preclude this
option”. Finally, it simply declares that “the lack of complete industry coverage of the
Australian Government’s OHS regime is not a barrier to any firms inclusion under national
rules”. The Productivity Commission dismisses each of these problems by relying on the
continued application of state and territory regulation:
a. first, to fill the gaps in the Commonwealth’s legislative powers;
b. second, to “develop appropriate implementation protocols” between the
Commonwealth and the states and territories to deal with the difficulties caused by
firms operating under different regimes in the same enterprise; and
c. third, to provide industry coverage beyond the competence and expertise of the
Commonwealth regime, which the Commonwealth scheme would be able to draw
upon to “expand its regime” until “all sectors, and all activities, in the economy are
covered by appropriate provisions”.
16. Unlike its predictions about the benefits of this proposal, the Productivity Commission has
proven eerily prescient about the disadvantages — albeit not in its bold assertions about how
easily those disadvantages could be avoided. As the case studies below demonstrate, the
application of the WHS Act to non-Commonwealth licensees has, in fact, led to significant
difficulties where multiple firms operating in a single site or enterprise are covered by
different OHS regimes — which is typical in the construction industry — as well as where
private companies covered by the WHS Act operate in industries outside Comcare’s
traditional coverage and expertise — again, for example, in construction. As those case
studies also demonstrate, those difficulties have not been ameliorated by “implementation
protocols” or any other cooperative cross-jurisdictional mechanisms, or by the
Commonwealth expanding the Comcare scheme — and especially not the resources allocated
to compliance and enforcement — to address gaps in industry coverage.
17. The Productivity Commission’s recommendation was implemented by the Howard
government through the OHS and SRC Legislation Amendment Act 2006 (Cth), which also
renamed the OHS(CE) Act the Occupational Health and Safety Act 1991 (Cth) (OHS Act).
The second reading speech of the Minister, Kevin Andrews MP, largely reiterates the dubious
assertions in the Productivity Commission’s report, and adds the equally dubious claim that
the reform “will produce better health and safety outcomes all round, including for the
employees of the affected bodies”. 4 Meanwhile, the Explanatory Memorandum to the
OHS&SRC Bill also refers to the obviously predictable difficulties involved in applying
different OHS schemes to multiple employers in the same site or enterprise, but dismisses
these on the basis that employers already covered by the OHS(CE) Act are already in that
situation, and it “does not create significant problems” 5 — without any acknowledgement
that the previous experience of Commonwealth authorities in the public service industry
might not be applicable or relevant to private companies in other industries, or that those
4
Hansard, Commonwealth House of Representatives, 7 December 2005, p 6.
5
Explanatory Memorandum, OHS and SRC Legislation Amendment Bill 2005 (Cth), p vii.
industries might have particular characteristics that would lead to significant problems under
the OHS Act that would not arise in the public service.
18. The OHS&SRC Bill also erased every instance of the word “union” from the OHS(CE) Act
and replaced it, wherever appearing, with the familiar vague phrase “employee
representative”, and erected barriers to the participation of unions in OHS matters.
Accordingly, and in contrast with the Minister’s recitation of the Productivity Commission’s
efficiency mantra, Brendan O’Connor MP’s speech during the second reading debates
includes the following:
… the motives behind this and related legislation are as much about removing the
status of unions in workplaces in occupational health and safety matters as about
anything else.
… the ideology behind the government in expunging the word ‘union’, in trying to
write unions out of legislation and in attempting to diminish the role that unions play
in—of all things—occupational health and safety smacks to me of ideology being put
ahead of commonsense and human decency. 6
19. As the below case studies demonstrate, this analysis has also been borne out in the experience
of non-Commonwealth licensees’ approach to their obligations under the OHS Act, which has
largely been to exploit the privilege of being permitted to opt out of the state and territory
OHS schemes to their industrial advantage, and particularly by removing and diminishing the
role and status of unions in OHS matters.
20. As the Issues Paper notes, following the defeat of the Howard government, there was
significant progress towards the harmonisation of OHS laws between the Commonwealth,
states and territories, which included the proposed transfer of the coverage of private
companies in the Comcare scheme from Commonwealth OHS legislation to state and territory
legislation. Accordingly, when the WHS Act commenced, automatic coverage of self-insured
licensees ceased. However, and anomalously, “non-Commonwealth licensees”, i.e., private
companies already covered by the OHS Act, were permitted to remain covered by the WHS
Act for a “transitional period”, which ends on a day prescribed by the regulations in respect of
the particular non-Commonwealth licensee. 7 Over the following 12 year period, the end of the
“transitional period” has only ever been prescribed for entities that have ceased to be covered
by the Comcare scheme. 8
21. In other words, despite the obvious policy of the legislation that the WHS Act should not
apply at all to new Comcare licensees, and that it should cease to apply to non-
Commonwealth licensees after a certain period, the grandfathered application of the WHS Act
has, perversely, been allowed to continue for all non-Commonwealth licensees still in
Comcare, on an apparently permanent “transitional” basis. This is clearly undesirable. The
Commonwealth should comply with its own legislation and bring the “transitional” period to
an end.
Case studies
6
Hansard, Commonwealth House of Representatives, 29 March 2006, 182.
7
Or a class of which the licensee is a member: WHS Act s 12(6).
8
Work Health and Safety Regulations 2012 (Cth) reg 12A.
22. CFMEU C&G has consistently maintained that the continued application of the WHS Act to
non-Commonwealth licensees is detrimental to worker health and safety, particularly because
it undermines the capacity of unions to represent members in relation to OHS matters. 9
23. As noted above, CFMEU C&G’s experience of dealing with non-Commonwealth licensees
covered by the WHS Act, and particularly the John Holland group of companies, has
frequently involved those entities exploiting that arrangement to hinder and obstruct CFMEU
C&G officials and members from exercising their rights under work health and safety laws. In
essence, John Holland, along with its joint venture partners and subcontractors, have treated
that arrangement as permitting them to act as a law unto themselves and not obliged to
cooperate in any way with CFMEU C&G members or officials in OHS matters.
24. This has involved those companies refusing permit holders under state OHS legislation
seeking to exercise right of entry at John Holland sites, refusing to recognise or deal with
HSRs appointed to represent workers covered by state OHS legislation, and refusing to permit
elections to be held for HSRs to represent designated work groups (DWGs) comprising direct
employees of John Holland along with employees of subcontractors covered by state OHS
legislation, even where those employees were working alongside one another at a single site.
25. In other words, Mr O’Connor MP was correct to say in 2006 that the application of the WHS
Act to non-Commonwealth licensees would “diminish the role that unions play in—of all
things—occupational health and safety”, and that it involved “ideology being put ahead of
commonsense and human decency”.
26. Comcare and state and territory OHS regulators have largely declined to intervene in these
matters. One of the apparent reasons for this is that it is an unreasonable strain on Comcare’s
finite resources to be required to regulate the John Holland entities, which are the only
commercial construction companies covered by the WHS Act. It is redundant to observe that
construction is an extremely dangerous industry with some of the highest rates of workplace
injury and fatality in Australia, and that the health and safety risks involved in the
construction industry require an intensive and specialist approach.
27. In those circumstances, it is a complete waste of taxpayer funds for Comcare to be required to
replicate the specialist occupational health and safety regulation of the construction industry
that already exists at the State and Territory level solely to maintain a bespoke arrangement
for just three members of a single corporate group. Without intending to criticise Comcare in
any way, this ongoing, pointless drain on its resources must inevitably result in poorer
outcomes in other areas.
28. It has also, unfortunately, been our experience that, where Comcare has been in a position to
intervene with scheme participants, the attitude of self-insurers has been to regard their
interactions with Comcare as strictly “voluntary”, to threaten to withdraw from those
“voluntary” interactions if any union representatives are involved, and to decline the valuable
assistance that Comcare can provide.
9
See, eg, CFMEU C&G’s submission to the 2018 Senate inquiry into “The framework surrounding the
prevention, investigation and prosecution of industrial deaths in Australia” (reproduced as Attachment
A to this submission) and CFMEU C&G’s submissions to the SRCC in response to the recent
applications by the John Holland group of companies to extend their self-insurance licences
(reproduced as Attachments B1 and B2 to this submission).
29. However, it is not only the non-Commonwealth licensees that exploit the WHS Act to their
industrial advantage. As case study 4 demonstrates, other Comcare scheme participants are
only too eager to exploit the fragmentation of OHS regulation between the Commonwealth
and the states and territories to their industrial advantage. This undesirable situation could be
avoided (at least in part) if the existing cooperative arrrangements between Comcare and state
and territory regulators were improved so as to ensure that there would be no impediment to
state and territory regulators exercising investigative and enforcement powers with urgency in
Comcare’s absence.
30. Of course, that situation could also be ameliorated if Comcare were provided with significant
additional resourcing to permit it to exercise its investigative and enforcement powers on an
urgent basis and respond to imminent and immediate risks to health and safety in a timely
fashion wherever they arise. Any existing regulatory barriers to Comcare taking such action
should also be removed.
Case study 1: John Holland, West Gate Tunnel Project – North Portal and Pivot Site Spoil shed,
2018
This case study involved a member who was an employee of MC Labour Hire and a HSR for a DWG including employees of MC Labour Hire and other subcontractors.
John Holland, which was a party to the joint venture which was the head contractor, split the work contracts such that some work was performed by employees of subcontractors in particular areas of the site, and other work was performed by direct employees of John Holland in other areas, particularly those working in tunnel construction. This meant that different OHS legislation covered workers depending on where they worked on the job site, as John Holland was covered by the WHS
Act and Comcare, while employees of subcontractors were covered by the Victorian legislation and
WorkSafe Victoria.
This included John Holland and its joint venture partner CPB refusing to permit elections for HSRs to be conducted for DWGs including direct employees of John Holland as well as employees of subcontractors. WorkSafe Victoria were required to attend site to attempt to address John Holland and
CPB’s “divide and conquer” approach to worker representation on health and safety matters, and ultimately endorsed the joint venture’s industrial strategy as being authorised under the WHS Act.
Subsequently, HSRs representing employees of subcontractors and CFMEU C&G officials were refused access to certain work areas on the job due to John Holland’s selective application of the
WHS Act to suit its industrial objectives.
This deliberately fragmented approach undermined the capacity of workers and their union representatives to ensure that the health and safety of the workforce was organised in a consistent fashion across the project.
Case study 2: John Holland, Sale, Gippsland, 2024.
On 23rd September 2024 a CFMEU Organiser entered a John Holland rail site located in Sale,
Gippsland.
The Organiser, who was the holder of an entry permit under the Victorian Occupational Health and
Safety Act, attended site and sought to exercise his right of entry under that Act to investigate suspected contraventions involving a lack of either first aid facilities on the job front or a workforce
rescue procedure. The work on this site is high risk, and being carried out at a location 300 meters down the railway tracks with no vehicle access and only accessible on foot. As such, it was imperative that a suitable rescue procedure was in place. When the Organiser entered site, he was asked to provide his Rail Industry Worker card. The Organiser showed his ARREO permit and notice of suspected contravention and explained the reason he was seeking to exercise right of entry. He was denied entry.
The Organiser asked that the company representatives call the WorkSafe Victoria advisory line to get clarification on an ARREO permit holder’s legal rights. The supervisor declined and chose instead to call a John Holland Health and Safety Representative, and it was agreed that the Organiser was not allowed on site.
The Organiser called Clayton Larkin from WorkSafe Victoria and was advised that he cannot enter a
John Holland site under an ARREO permit because this company works under different legislation and Comcare.
Case study 3: John Holland, Bell-Preston and Bell Preston Level Crossing, 2021.
The member was an employee of Cycon Civil, a subcontractor to John Holland, and HSR for a DWG comprising employees of that company and other subcontractors. The member was voted up by the membership and his details were displayed around the job site, including on notice boards.
The member issued 21 provisional improvement notices in his capacity as HSR, each of which were not recognised by Comcare. The member was advised that this was because he worked for a subcontractor that was not covered by the WHS Act, which Comcare administers. Instead, Comcare cancelled the notices as being outside its jurisdiction to investigate.
Ultimately, John Holland informed Cycon Civil that the member was no longer required on site and refused him access to the workplace, including by directing security guards to forcibly remove him from site. When the member reported the forced removal of the site HSR to Comcare as a safety issue,
Comcare refused to investigate and instead endorsed John Holland’s conduct in denying the employees of subcontractors their right to be represented by their elected HSR.
Case study 4: ASC/Transfield Holdings, South Australia, 2015
ASC is wholly owned by the Australian Government and builds Australia’s submarines. ASC is based in both South Australia and Western Australia.
Transfield Holdings provides infrastructure maintenance services and was subcontracted by ASC to complete painting works for ASC in its SA yard. Painters working for Transfield Holdings are represented by the CFMEU.
As the ASC yard is government owned, stricter rules were in place for CFMEU Organisers to access the yard and speak to those members, including the requirement to give 48 hours’ notice of entry.
Once the CFMEU Organiser was on site, it was found that members were using a 2pac paint, known for durability and resistance to weather, however, highly toxic and especially when stored incorrectly in shipping containers in hot conditions.
During the initial meeting, the Organiser highlighted with management and the OHS representative all relevant parts of the Safety Data Sheet (SDS) that the company had failed to comply with.
In particular, the Organiser raised the inadequacy of the PPE that had been provided to the workers.
Several of the painters had started developing skin conditions and become sensitised to the paint chemicals found in most paints.
Members were sent to ASC’s internal doctors who worked on site. The workers were directed to keep working and provided cortisone tablets for their medical conditions. Proper coveralls, masks and gloves were never provided. The Organiser demanded that the work stop until adequate protection was implemented as per the SDS. This also did not occur.
The Organiser sought to go on site again the next day in response to a call from the affected workers as nothing had changed on site despite the meeting occurring. The Organiser was refused entry –
Comcare legislation was cited as a reason for not allowing organiser on.
The Organiser, instead, was required to remain at the site entry for three hours making repeated attempts to contact either Comcare or Safework SA to attend site to deal with the companies’ failure to adequately address the safety concerns. Comcare were not contactable. Safework SA originally resisted taking any action, despite being bound by a Memorandum of Understanding which allows them to act in the absence of Comcare.
Safework SA eventually agreed to attend site. This did not occur until a week later, and nothing was done to address the safety hazards involved in the use of the paint in the meantime.
Attachment A
Construction, Forestry, Maritime, Mining and Energy Union submission to the Senate Education and Employment Committees’ inquiry into:
The framework surrounding the prevention, investigation and prosecution of industrial deaths in
Australia
July 2018
Construction, Forestry, Maritime, Mining and Energy Union National Office
540 Elizabeth Street, Melbourne, VIC 3000 1
Contents
1. Introduction 3
2. Unionised workplaces are safer workplaces 4
CASE STUDY 1: The difference a union makes – Responding to fatalities in 6
the pulp and paper industry
3. Insecure work and exploitation of temporary overseas 7
workers is making workplaces less safe
Temporary overseas workers are less likely to speak up about OHS issues 7
CASE STUDY 2: The needless death of a German backpacker on a Perth 8
construction site in 2016
Insecure work leads to poorer OHS outcomes 9
CASE STUDY 3: Insecure work and adverse OHS outcomes 11
4. The Government’s attacks on unions is making workplaces less 12
safe
The reinstatement of the ABCC 12
CASE STUDY 4: The ABCC’s political priorities 13
The Code for the Tendering and the Performance of Building Work 13
The Federal Safety Commissioner is ineffective 14
5. Improving the legislative and regulatory framework 16
There is inadequate enforcement action being taken by regulators 16
CASE STUDY 5: Inadequate investigations lead to discontinued 17
prosecutions
CASE STUDY 6: Head contractors are not being held accountable 19
Legislative inconsistency in the offshore oil and gas industry 21
Workers, their families, and their unions should be able to prosecute WHS 22
breaches
Where penalties are ordered, they are inadequate 23
CASE STUDY 7: Non-compliance of sub-contractors with already inadequate 23
penalties
The need for industrial manslaughter laws 24
Other improvements to the Model WHS Framework which would improve 26
safety
CASE STUDY 8: The Union is being consistently obstructed from performing 26
work health and safety inspections
Appendix 1: Resolutions passed at the Union’s National Conference, June 2018 29
Appendix 2: John Holland’s abysmal safety record 31
2
1. Introduction
On March 2018, the Senate referred the inquiry into the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia to the Education and Employment
References Committee for inquiry.
The Construction, Forestry, Maritime, Mining and Energy Union (the Union) is Australia’s main trade union in construction, manufacturing, maritime, mining and energy production. We welcome the opportunity to submit comment to this inquiry.
Our union has been at the forefront of battles to improve health and safety for workers in our industries and sectors for over 150 years. And for good reason; our members work in some of the most dangerous industries. The history of mining, forestry, manufacturing, construction and maritime in Australia is littered with incidences of industrial death and disease. The challenges in these industries are not historical, but contemporary. A worker is seriously injured or killed every 6 minutes in these industries. Wharfies remain 14 times more likely to die on-the-job than the average
Australian worker. As many as 1 in 15 coal workers in Queensland may have contracted Black Lung
Disease. Deaths on construction sites are a fortnightly occurrence.
When employers cut corners on health and safety, workers - especially apprentices, casuals and older people - often feel unable to speak up. That’s why the union’s role is vital.
In a globalised world it is all too easy to see what will happen if our union’s role is diminished; one just needs to see what happens overseas. 1200 workers have already died in construction on World Cup stadiums and related infrastructure in Qatar between 2010 and 2017. In Bangladesh, a five-story textile and clothing factory named Rana Plaza collapsed. The search for the dead ended on 13 May
2013 with a death toll of 1,134.
Our campaigning has built today’s workplace health and safety system. As the evidence shows, our work saves lives. But our work in under attack by hostile Governments (particularly a hostile
Commonwealth Government), anti-union regulators, inept WHS regulators and employers who care more about the bottom line than work health and safety.
At our union’s inaugural National Conference held in June 2018, a number of resolutions were passed which will inform our approach to health and safety into the future. Copies of these resolutions are found in Appendix 1.
We welcome the opportunity to participate in this inquiry, and would appreciate further opportunities to outline our special expertise and knowledge in this field.
3
2. Unionised workplaces are safer workplaces
Research shows that unionised workplaces are safer workplaces. Unions play a key role in educating workers about safety hazards, ensuring employers reduce hazardous tasks or workplaces, and provide well-trained OHS reps who are able to identify and fix potential safety problems in the workplace.
Employers can face conflicts of interest in relation to health and safety in a number of respects. This may include the need to increase workloads and pressure workers to work faster or longer hours in order to increase output; a temptation to have employees ignore safety protocols that slow production; the trade-off between the bottom line and costly safety related expenditure or training; or managers overlooking safety related spending such as maintenance. For example, a 2017 study examining the relationship between workplace safety and managers attempts to meet earnings expectations found significantly higher rates of injuries in firms that are under pressure to meet earnings targets. The study also found that the relationship is not as strong in industries where there is high union membership and that this is likely due to unions’ aim to ensure reasonable workloads, work speed and safety.1
Empirical evidence has demonstrated that unionised workers suffer less injuries than non-unionised workers. Workers in a unionised workplace are 70 percent more likely to be aware of OHS hazards and issues than in a non-unionised workplace.2 In the United Kingdom, research has found that employers that had trade union health and safety committees had half the injury rate of employers who managed safety without unions. Workers in unionised workplaces were less likely to have a fatal injury.3 Unions have also been found to improve safety outcomes in studies across Ireland, Canada,
France and the United States. In Australia, unionised workplaces have been found to be three times more likely to have a Safety Committee and twice as likely to have undergone a management safety audit that non-unionised workplaces. In addition to improved injury and fatality rates, a 2013 study of
31 industrialised countries found that union density is the ‘most important external determinant of workplace psychosocial safety climate, health’ and that ‘eroding unionism may not be good for worker health or the economy’.4 Research also finds that unionised workers are more likely to receive safety instructions; have regular safety meetings; be made aware of dangerous work practices; and be less likely to perceive that taking safety risks is part of their job5.
In the Australian context, an interim report completed in the Deakin University, Department of
Management Faculty of Business and Law on the Victorian construction industry made findings which suggest that Union OHS representatives play a valuable role in improving health and safety on
Victorian construction sites and that:
High hazard risks were less prevalent on sites with Union OHS representatives than those with
management nominated OHS representatives, and those with no OHS representation at all;
1
Caskey, J., Ozel, N. (2017), ‘Earnings expectations and employee safety’, Journal of Accounting and
Economics, 63, pp. 121-141.
2
ACTU (na), ‘What has the Union movement done for OHS?’, accessible at: https://www.actu.org.au/ohs/about-us/union-movement
3
TUC (2015), ‘How unions make a difference on health and safety: The Union Effect’, accessible at: https://www.tuc.org.uk/sites/default/files/Union%20effect%202015%20%28pdf%29_0.pdf
4
ibid
5
Gillen, M., et al. (2002), ‘Perceived safety climate, job demands, and coworker support among union and nonunion injured construction workers’, Journal of Safety Research, 33(1), pp. 33-51.
4
Injuries occurring on sites with Union OHS representatives were less severe than those on sites
with management nominated OHS representatives, and those with no worker representation at
all. They were less likely to involve hospitalisation, or require transportation to hospital by
ambulance;
Sites with Union OHS representatives were more likely to have undertaken appropriate risk
assessments, contributing to a lower level of high hazard tasks. They were also less likely to have
a mismatch between documented safe work method statements and work practices;
Sites with Union OHS representatives were more likely to demonstrate a learning approach to
hazards; this contrasts with a ‘repeat offender’ approach identified on non-union sites;
Sites with Union OHS representatives were better informed on industry standards, demonstrated
by the lesser need for OHS inspectors to provide advice on these standards;
Improvement notices were less likely to be issued on sites without a Union OHS representative,
compared to sites with no OHS representative; and
Sites with no OHS representation appear to be under-reporting injuries to WorkSafe Victoria.6
Trade unions also play an important role in enforcing health and safety standards where individual workers do not feel they have the ability or power to stand up for themselves. This is particularly relevant where workers are in insecure work and feel they have to avoid upsetting their employers in order to receive ongoing work. The relationship between insecure work and safety is discussed later in this submission.
In addition, unionised and non-unionised workplaces often have a different way of investigating incidences. There is evidence that investigations in unionised workplaces result in greater learnings and preventative strategies which can be applied across a sector to improve WHS and prevent future incidences of industrial death (see Case Study 1 below).
There is significant Australian and international evidence that a union presence in a workplace is positively associated with improved work health and safety.7 As unionised workplaces have been
6
Dr. Elsa Underhill, Deakin University, “Evaluating the role of CFMEU OHS representatives in improving occupational health and safety outcomes in the Victorian construction industry: Interim Report”
May 2016
7
See, eg, Maureen F Dollard*, Daniel Y Neser, ‘Worker Health is Good for the Economy: Union Density and
Psychosocial Safety Climate as Determinants of Country Differences in Worker Health and Productivity In 31
European Countries’ (2013) 92 Social Science & Medicine; Andrew Robinson and Clive Smallman, ‘Workplace
Injury and Voice: A Comparison of Management and Union Perceptions’ (2013) 27 Work, Employment &
Society 4; Theo Nichols, David Walters, Ali C. Tasiran, ‘Trade Unions, Institutional Mediation and Industrial
Safety: Evidence from the UK’ (2007) 49 Journal of Industrial Relations 2; S Grazier Compensating Wage
Differentials for Risk of Death in Great Britain: An Examination of the Trade Union and Health and Safety
Committee Impact (2007) Working Paper 2007/02, Welsh Economy Labour Market Evaluation and Research
Centre, Swansea University; Department of Trade and Industry, Workplace Representatives: A Review of Their
Facilities and Facility Time, Consultation Document, January 2007; Theo Nichols, David Walters, Ali C Tasiran,
The Relationship between Arrangements for Health and Safety and Injury Rates – The Evidence-Based Case
Revisited, (2004) Working Paper Series Paper 48, School of Social Sciences, Cardiff University; Kwan Hyung Yi,
Hm Hak Cho, Jiyun Kim, ‘An Empirical Analysis on Labor Unions and Occupational Safety and Health
Committees' Activity, Their Relation to the Changes on Occupational Injury and Illness Rate’ (2001) 2 Safety and Health at Work 4; Andrew Robinson and Clive Smallman, The Healthy Workplace? (2000) Working paper
5
empirically shown to increase safety and reduce the rates of injury and fatality on worksites, it would
be logical for the Government to encourage and support unionised workplaces. Unfortunately, the
Government’s anti-union agenda is achieving the opposite, making workplaces less safe.
Case Study 1: The difference a union makes – Responding to fatalities in the pulp and
paper industry
In 2010, two fatalities occurred in the pulp and paper industry: one at a unionised workplace, the other at a non-unionised site. The difference in the responses is striking.
How a unionised site deals with a fatality
At a paper mill in NSW, a pedestrian was fatally injured after colliding with a forklift carrying pulp bales.
As this was a unionised site, the union was notified of the incident within 20 minutes of it occurring.
The company and union immediately established a joint investigation team. With the union involved, the investigation was transparent, accountable and focussed on the root cause of the tragedy.
Following a five week investigation, 12 key recommendations were presented back to company and union, all of which were accepted. The recommendations were quickly implemented and actively involved senior union delegates at the site.
A pulp & paper industry Safety Alert, issued by the Pulp & Paper Industry Health, Safety & Environment
Unit, was prepared and distributed across all businesses in the pulp and paper sector, aiming to improve knowledge and safety practice.
Since this incident and the subsequent implementation of the 12 key recommendations, the workers and management at the site have worked hard, collectively, to improve their safety performance, significantly reducing their first aid & medical incidents. 2013 was a Lost Time Injury free year for the mill.
How a non-unionised site deals with a fatality
At a paper finishing and converting plant in NSW an observer was fatally injured when a 400kg reel fell on him as a truck was being unloaded.
As this was a non-unionised site, it was difficult to ascertain and confirm any facts about the incident.
WorkCover NSW were reluctant to share details of the incident, citing the privacy of the company and individual.
It was impossible to be confident that appropriate preventative actions had been taken. What is known is that no pulp & paper industry Safety Alert was produced – a key way of lifting safety standards in the industry, especially following such a serious incident.
Eight weeks after the incident, the Union’s Pulp & Paper Workers District Federal Secretary wrote to the
Head of WorkCover NSW requesting a comprehensive review of traffic management practices in the sector following this and a number of incidents in a short space of time. No response was ever received.
2000/05, Judge Institute of Management; Barry Reilly, Pierella Paci and Peter Holl, ‘Unions, Safety Committees
and Workplace Injuries’ (1995) 33 British Journal of Industrial Relations 2.
6
3. Insecure work and exploitation of temporary overseas workers is making workplaces less safe
"Trade unions can play an important role in enforcing health and safety standards. Individual
workers may find it too costly to obtain information on health and safety risks on their own,
and they usually want to avoid antagonizing their employers by insisting that standards be
respected.”
– The World Bank
Temporary overseas workers are less likely to speak up about OHS issues
For many temporary overseas workers, their ability to stay in the country is linked to their employment contract. This makes this workers particularly vulnerable, particularly where they feel that speaking up about an OHS issue may result in them being sent home by an employer. As a result, temporary overseas workers may be less likely to speak up about OHS issues or to exercise their rights in the workplace with respect to health and safety. Vulnerable workers are also more likely to be willing to agree to longer work hours (contributing to fatigue), or be convinced to cut corners increasing the likelihood of injury.
Overseas workers are also likely less well informed of their rights and the obligations of their employers with respect to OHS issues. Many workers, particularly lower educated and lower skilled workers, are less likely to have received formal OHS training than domestic workers. There is also an issue in relation to culture and language. When workers are from countries where their native language is not English, their ability to read and understand instructions, safety signs etc. may be diminished. Cultural factors may also influence how overseas workers see and understand risks, particularly those from countries with poor OHS records and substantially lower OHS standards than
Australia.
These problems mean many overseas workers are not prepared for working in dangerous work environments, such as construction and mining. For example, at the end of 2016 a German national hired on a work site in Perth fell 35 metres to her death down a ventilation shaft.
7
Case Study 2: The needless death of a German backpacker on a Perth construction site
in 2016
At approximately 2.50PM on Monday 10th October 2016 a 27 year old German backpacker,
Marianka Heumann, fell 35 metres to her death on construction project in the Perth CBD. It was
yet another black day for Western Australian construction workers.
When Union officers entered the site about 40 minutes after Ms Heumann’s death, they saw that
the builder – Hanssen Pty Ltd - had failed to close off the second level of the job where the worker
had landed. Blood and strewn work clothing were clearly visible and accessible, and no effort had
been made to ensure the scene of the fatality wasn't contaminated. The job was still going full
steam ahead with a major concrete pour taking place. The police had not been contacted.
The OHS regulator, Worksafe didn't arrive at the job until over an hour after the Union.
The deceased worker wasn't wearing a fall prevention harness when she fell from the 15th floor
of the service shaft. An investigation by the Union found that there were no suitable harness
points. The closest harness point was a few metres from where she was working, located on the
floor. At best, the harness point was unsafe, even if it had been used to secure a harness. To make
matters worse, the worker was balanced on a plastic bucket with a 35 metre fall beneath her when
she slipped and fell whilst placing silica on the shaft panels.
The site was under the control of builder Hanssen, who have an exclusive building arrangement
with the develop Finbar. Ms Heumann’s death was not the first death of a worker at a Finbar /
Hanssen site. In 2011, a worker was killed when a concrete well lid crushed his skull as the load
was being lifted by a crane.
The site where Ms Heumann died was also less than 1km from the site where 2 young Irish
construction workers were crushed and killed by a concrete panel less than 12 months before (see
Case Study 6 below).
In 2008, Hanssen was fined $173,250 by the Federal Magistrates Court in Perth for exploiting
foreign workers. In that case, the court found that the company was guilty of 21 breaches of the
Workplace Relations Act in relation to Australian Workplace Agreements. At the time, then-
Commonwealth Workplace Ombudsman Nicholas Wilson said: "As highlighted in court, Mr
Hanssen, the director and secretary of the company, gloated that the employees would sign
anything because they were frightened of being sent back overseas. This was a deliberate case of
exploitation and something that the community, quite rightfully, will not tolerate” (“Building Firm
Hanssen fined for exploiting workers”, Perth Now, March 11 2008). Magistrate Tony Lucev said
the breaches were "deliberate and exploited vulnerable workers" (Jones v Hanssen Pty ltd [2008]
FMCA 291 (11 March 2008).
Since that decision, the Union has continued to raise repeated concerns in relation to the use of
foreign and temporary workers on Hanssen constructions sites. The union remains concerned that
Finbar / Hanssen sites are characterised by young, inexperienced construction workers – many of
whom are unsupervised apprentices, or inexperienced and unqualified backpackers on working
holiday visas.
8
Insecure work leads to poorer OHS outcomes
“You have got a high turnover of workers. You have got many casual workers on these
jobs that work from one day to the next. They are not going to put up their hand and
say, 'I've got a concern about the contamination or what I'm doing here.' They are just
going to do it because they want to get paid for the work that they can do so that they
can pay their bills. That is the reality”
– Mick Buchan, Branch Secretary, Western Australian branch of the Construction and
General Division of the Union8
Non-standard work has also been associated with poorer OHS outcomes. Casual, labour hire workers and independent contractors often face greater risks because 1) the temporary nature of their work/triangular working relationship means they are often not properly trained; 2) they may have less experience in the workplace; 3) their rights under regulation may be less clear/not so well understood; and 4) their vulnerability means they may find it much harder to speak out about OHS issues in fear of not receiving future work.
Anecdotal evidence by workers in our industries demonstrates that workers in insecure work will often be less likely to speak out about OHS issues, and therefore more likely to be injured, that those in permanent work. This anecdotal evidence is consistent with international research.
For example, a report by the International Labour Organisation found that the growth of non-standard work has been associated with adverse OHS outcomes (e.g. injury rates) as well as weakening the regulatory regimes that protect workers. It finds that global evidence points to large adverse health effects from insecurity and that research directly links low pay (as associated with temporary and part- time jobs) and poor OHS outcomes. The use of subcontracting and multilevel subcontracting is associated with fractured OHS management, poor OHS outcomes and “corner cutting on safety”.9
In 2006, The University of New South Wales Industrial Relations Research Centre conducted a study into the health and safety costs of casual employment. The study found that “casual working arrangements and job insecurity are associated with adverse OHS outcomes such as increased fatalities, illnesses, occupational violence and psychological distress, deceased reporting propensity, fewer training and career opportunities, as well as inferior knowledge, compliance with OHS entitlements, standards and regulations”. The study found that characteristics of precarious work, including greater insecurity; economic and reward pressures; low levels of social support; imbalance of demands and control; disorganised work processes or settings and lack of induction and training; and regulatory failure contribute to adverse OHS outcomes. “Job insecurity and especially the fear that absence from work or even refusal to do overtime might increase the likelihood of redundancy, means that some workers may avoid taking time off even when ill… Casual workers receive no paid sick leave, annual leave, carers
8
Official Committee Hansard SENATE ECONOMICS REFERENCES COMMITTEE, Non-conforming building products THURSDAY, 9 MARCH 2017 PERTH p 9.
9
Quinlan (2015), ‘The effects of non-standard forms of employment on worker health and safety’, Conditions of work and employment series, No. 67, International Labour Office, accessible at: http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/--- travail/documents/publication/wcms_443266.pdf
9
leave or public holidays. Thus being sick is a real problem or hazard for the majority of casual workers.”10
A University of Sydney study in 2004 also found that if the growth of casual jobs continues, we are likely to ‘witness the further erosion of safety and training standards’. Specifically, analysing worker entitlements the study found that while less than three percent of permanent workers are not covered by workers’ compensation arrangements, over one in five casuals (21.7%) were found not to be covered.11
Labour hire has also found to result in poor OHS outcomes. The dissenting report of the House of
Representatives Standing Committee on Employment, Workplace Relations and Workforce
Participation’s inquiry into Labour Hire Arrangements and Independent Contracting (2005) found credible evidence of difficulties in identifying the responsibilities of parties under labour hire agreements: “the triangular relationship, involving the labour hire agency, the host firm and the labour hire worker has led to a blurring of legal obligations and entitlements in a number of areas, such as occupational health and safety and return to work policies.”12
A 2002 Worksafe Victoria study examining OHS data for labour hire employees found that they were more likely to be injured than direct hire employees, and that their injuries are more severe.13 Brennan et al. found that approximately 40% to 50% of labour hire agencies do not consistently provide safety inductions for their employees and 34% to 39% of labour hire agencies do not even assess the host organisation’s OHS systems and workplaces prior to assigning employees. Almost 50% of hosts state that labour hire agencies never conduct OHS assessments of their workplace, a further 19% say it occurs only sometimes.14 A 2011 study examined Victorian OHS data and found that temporary agency workers (labour hire) experience different and more acute risks than direct hire employees.15
10
McNamara, M. (2006), ‘The hidden health and safety costs of casual employment’, Industrial Relations
Research Centre, Research supported by Bartier Perry, accessible at: http://wwwdocs.fce.unsw.edu.au/orgmanagement/IRRC/CasualEmploy.pdf
11
Buchanan J (2004) Paradoxes of Significance: Australian Casualisation and Labour Productivity. Paper prepared for ACTU, RMIT and The Age Conference ‘Work Interrupted: casual and insecure employment in
Australia’, Hotel Sofitel, Melbourne, 2 August 2004. Accessible at: www.actu.org.au/media/230391/buchanan_productivity.doc
12
Standing Committee on Employment, Workplace Relations, and Workforce Participation (2005), Inquiry into
Labour Hire Arrangements and Independent Contracting. Accessible at: https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=e wrwp/independentcontracting/dissent.htm
13
Underhill, E. (2002), ‘Extending Knowledge on Occupational Health & Safety and Labour Hire Employment: A
Literature Review and Analysis of Victorian Workers’ Compensation Claims’, a report prepared for WorkSafe
Victoria, accessible at: https://www.worksafe.vic.gov.au/__data/assets/pdf_file/0010/10081/LHReport_October2002.pdf
14
Brennan, L. Valos, M. and Hindle, K. (2003), ‘On-hired workers in Australia: Motivations and Outcomes’,
School of Applied Communication, RMIT University, Occasional Research Report, Melbourne.
15
Underhill, E. and Quinlan, M. (2011), ‘How precarious employment affects health and safety at work: the case of temporary agency workers’, Industrial Relations, vol. 66, no. 3, pp. 397-421. Accessible at: https://www.erudit.org/revue/ri/2011/v66/n3/1006345ar.pdf
10
Case Study 3: Insecure work and adverse OHS outcomes
The following examples of workers in insecure work feeling unable to raise OHS issues come from the
Union’s 2015 Submission to the Victorian Inquiry into the Labour Hire Industry and Insecure Work.
PATRICK, a casual rigger/dogman hired through a labour hire firm in the construction industry in Melbourne says that his workplace is not always safe, he was not told about WorkCover and what to do if he was injured and does not feel he can discuss health and safety without risking his job.
“I work in the construction industry as a rigger/dogman, which is very dangerous at the best of times. As a casual, you have absolutely no secure ground to stand on, and if you even question health and safety, the builder you are on-site for will call you a trouble maker, phone your employer, and demand not to send you back to that job. So your employer gets angry and blames you, and before you know it you don't get any more phone calls for work and are hung out to dry. So you are constantly putting your safety at risk due to intimidation and fear of losing your livelihood.”
RICHARD, a casual Crane Driver in Melbourne said his workplace was not always safe but felt he could not discuss health and safety without risking his job. ‘Cranes had no load charts!!! Riggers were too inexperienced. We were expected to lift dangerous deliveries (reo in bags). Rubble and rubbish in bags instead of rated bins. No street protection for the public and dogmen. Reo bars not capped. Balconies overloaded.’ He stated that he ‘carried an injury because l was afraid to report it. [he was] always stressed because safety was ignored and men with my experience are told to shut up or get sacked. NO DECENT OH
AND S REPS ON MOST SITES.’
ALISTAIR, hired through a labour hire agency in the mining industry stated ‘I'm a Boilermaker by trade, and because of my height (195cm) they put in a position where I was forced to weld in overhead position for 7-
8 hours with my neck in hypertension. After about 5 hours of welding in that ridiculous position, the cervical disc prolapsed in the blink of an eye.
“It was a grindy kind of clicking sensation in my neck that lasted under a second, followed by a nervous tingle down my right arm that went for about 15-20 seconds. That was the annulus of the cervical disc failing and the jelly inside the disc squeezing out. The headshield had overloaded the cervical disc. Anyway I was stuck in the mine site like that for nearly a week, and had to wait another 2 weeks for spinal surgery in Perth. They didn't send me to hospital, they bailed me up in a hotel instead. And on the day of surgery, while on the table with a hole in my throat the size of a lemon, [the company] terminated me. Yep. Fired on the table.
Now I have 25.4% of permanent overall body impairment, and 62.5% of permanent calculated injury to my cervical spine. For life. Show me an employer who will employ a Boilermaker with a prosthesis in their spine.
You're joking. They won't go anywhere near me. That mining company destroyed my life and career.
Personally I think that I'm better off as ash. I wasn't even compensated adequately…. I was on permanent labour hire. Meaning I could go any day. Even if I did nothing wrong or out of line. Even if injured. Working under labour hire is inappropriate for tradies when you consider what can happen to us. Labour hire is casual essentially....and in our line of work this can mean being casually injured or casually killed. Those T&Cs are inadequate and totally inappropriate”.
SARAH, a contractor in the construction industry in Geelong states that her workplace was not always safe and she did not feel she could discuss health and safety without losing her job. She said ‘I was contracting with an ABN but to one employer only. I know this is illegal and I know myself and other workers are being paid incorrectly through ABNs but to speak up is to lose your job. If WorkCover is mentioned it's a big issue.
Employers cringe at the words so to keep your job you don't mention it.’
11
4. The Government’s attacks on unions is making workplaces less safe
Workplace health and safety for workers is core business for our Union. The more that the
Government attacks and undermines unions’ legitimate roles and positions in society, the more that they hinder and restrict unions, then the more that they undermine our capacity to implement our core business and contribute to better WHS outcomes for workers.
Attacks on our Union and our core business - which includes preventing industrial deaths in Australia
- is a feature of this Commonwealth Government.
The reinstatement of the ABCC
The Commonwealth Government’s attacks on unions has made workplaces less safe. There is no greater example of this than the reinstatement of the Australian Building and Construction
Commission (ABCC).
The ABCC works to undermine the role of unions, which has had an adverse impact on work health and safety outcomes. This undermining happens in a range of ways, including application of the
Building Code restricting the inclusion of clauses in enterprise agreements that facilitate union and worker participation in work health and safety matters.
By way of background, in the year in which the ABCC was introduced – 2005 - the number of workplace fatalities in construction was 30. It then exceeded that number (and the number in 2004 (35)), every year between then and 2012.16
Laws which cause workers to fear raising safety issues or which compromise their ability to voice safety concerns – including via their union representatives – have a negative effect on work health and safety outcomes. The fact is that when workers are faced with huge fines and a politically motivated
‘watchdog’ that prosecutes workers and unions, but not employers, they will think twice about taking action to fix safety problems.
The ABCC was re-established in 2016. Fines increased and compulsory interrogation powers were reinstated.
16
Whilst there was a reduction in the frequency rate of serious injuries over that period consistent with a reduction in the all-industries rate, a number of factors need to be kept in mind. Firstly, the number of serious claims actually grew by 13% in the same period and secondly, the rate of decline in the incidence rate has decreased since 2005 by comparison with the 2002-03 to 2004-5 period.
12
Case Study 4: the ABCC’s political priorities
The capacity of union officials to enter workplaces to assist in protecting members from unsafe work practices is critical, but the union is consistently obstructed from performing its safety role.
In 2017 a federal court judge blasted the Australian Building and Construction Commission for wasting time and taxpayers' money on taking two officials to court for "having a cup of tea with a mate" which Justice
North described as a “miniscule, insignificant affair". Justice North said: "This is all external forces that are beating up what's just a really ordinary situation that amounts to virtually nothing"; "for goodness sake, I don't know what this inspectorate is doing"; and “[when the ABCC] use[s] public resources to bring the bar down to this level, it really calls into question the exercise of the discretion to proceed" (“Judge turns on
ABCC for wasting time over ‘cup to tea’ CFMEU incident”, The Australian Financial Review, 13 March 2017).
An appeal brought by the ABCC was subsequently unsuccessful.
The Code for the Tendering and the Performance of Building Work
Of further concern is the Code for the Tendering and Performance of Building Work (the Code) which
was implemented at the time of the reintroduction of the ABCC in 2016. The requirements of the
Code are currently applied to 310 Head Contractors in the industry, and 1,121 subcontractors that are
also code-covered entities.17
Clauses 11(1) and 11(3) of the Code have the effect of prohibiting code-covered entities from being
parties to an enterprise agreement that include an array of clauses that would otherwise be permitted
under the Fair Work Act. These include clauses that provide for union participation in decision making
about matters that affect workers in the workplace, such as work health and safety and excessive
hours of work from a fatigue management perspective. It also prohibits clauses which provide for the
rights of an official of a building association to enter premises other than in strict compliance with Part
3-4 of the FW Act.
Laws which foster joint management of work health and safety matters have a positive effect on work
health and safety outcomes. Including joint management in enforceable industrial agreements should
therefore be encouraged. Prohibiting joint management in industrial agreements, which is the effect
of the Code, is completely counter-productive to what should be a universal goal of safer workplaces.
To compensate for restrictions on these proactive measures which unions utilise to manage fatigue
and prevent occupational hazards, the Code includes a requirement for Code covered entities to abide
by work health and safety laws. The Commissioner of the ABCC is empowered to refer any code-
covered entity that has failed to comply with the Building Code, including because of a failure to
comply with work health and safety laws, to the Minister with recommendations that a sanction be
imposed.
However, rather than actively monitor compliance with work health and safety laws, which unions do
in the event they are provided access to a workplace, the ABCC’s approach is completely re-active.
Specifically, rather than actively monitoring compliance with clause 9(3) as part of the inspection and
audit regime, the ABCC will only act if there has been a court decision that a code-covered entity has
17
Proof Committee Hansard SENATE EDUCATION AND EMPLOYMENT LEGISLATION COMMITTEE Estimates
(Public) WEDNESDAY, 30 MAY 2018 CANBERRA, p 31
13
contravened a work, health and safety law. This approach contrasts to the ABCC’s approach in other areas where it will actively investigate and refer matters for enforcement.
Their approach significantly diminishes the potential for the Building Code to effect real change in improving work health and safety in the industry, as was recently explained by Ms Cato in a Senate
Estimates hearing:
‘…As you can imagine, it takes some time for these matters to go through the courts, so, by
the time there's a court outcome, it's usually two or three years after the event, so it will
take a little while for the power of the code and the sanction that can also apply to the
company to be able to be put in place for those OHS breaches.’
The Federal Safety Commissioner is ineffective
It is entirely appropriate that a company’s work health and safety record, and record of compliance with work health and safety laws, are taken into account when awarding public contracts. However, for several reasons the Federal Safety Commissioner (FSC) has proved a complete and utter failure in improving work, health and safety performance in the industry.
By way of background, the FSC was established in 2005 following the Cole Royal Commission recommending that the Australian Government use its influence as a client and provider of capital to foster improved work health and safety performance by developing, implementing and administering a work health and safety accreditation scheme for Australian Government building and construction work.
There are currently about 420 accredited companies to FSC requirements representing 30 to 50 percent of industry turnover.18 Without FSC accreditation, companies are not allowed to be the head contractors in Government building projects.
The fact of the matter is that the presence of the FSC (and Federal Safety Officers) is invisible in the industry. Direct requests for assistance or intervention in particular safety issues of relevance to the
Federal Safety Commissioner’s remit have not been met. Problems would appear to include the below:
the FSC is not valued or resourced appropriately in order to be effective. The office of the
Federal Safety Commissioner has only 28 staff, along with 27 consultants engaged as Federal
Safety Officers;
An unaccredited company is only prevented from acting as a head contractor undertaking
Commonwealth-funded projects, not as subcontractor (in contrast to an exclusion sanction
under the Building Code); and
the Federal Safety Commissioner will not publish the name of a company that loses
accreditation (again, in contrast to an exclusion sanction under the Building Code). This
protection reduces the incentive to maintain accreditation.
From 2005 up to 14 July 2017, only two companies lost accreditation for not complying with the FSC’s
“best practice work health and safety standards”. One of these companies is apparently not John
18
Official Committee Hansard SENATE ECONOMICS REFERENCES COMMITTEE Non-conforming building products FRIDAY, 14 JULY 2017 MELBOURNE, p 10
14
Holland, which retains the right to tender for and perform Commonwealth funded building work. This is despite their appalling record, which includes the deaths of multiple workers over recent years.
Some - but not all – of the examples of workers being killed by John Holland’s failures are set out in
Appendix 2 to this submission. And the tragedy continues – on 24 June 2018 another worker, an engineer working on Melbourne’s West Gate Tunnel project, died when he was hit on the head with piling rig cable. An investigation into this needless death is ongoing.
All of these deaths and injuries that are set out in Appendix 2 have been found by courts to be directly attributable to John Holland’s failure to discharge their duty of care to their employees. In this same period, the Union has faced fines for conduct ultimately designed to try improve safety to prevent these unnecessary deaths.
The Federal Safety Commissioner has not acted by removing John Holland’s accreditation. The FSC stated that the reason that there were not more companies losing accreditation is because it would be the end of the company (due to not being able to tender for Commonwealth Building work), and that subsequently: “When a CEO or a board find that their accreditation through me is at risk, they will pull out all stops to avoid the loss of accreditation.”19
Small fines, and a lack of willingness for the FSC to remove accreditation, would appear to result in a lack of any genuine deterrent effect. It results in a death or serious injury being treated simply as the cost of doing business for some unscrupulous companies.
The governments’ actions which adversely impact health and safety are not always as blatant as the reinstatement of the ABCC. Other recent actions have included:
The abolition of the requirement that Commonwealth Department’s source textile, clothing
and footwear only from Australian companies accredited to Ethical Clothing Australia (ECA).
Accreditation to ECA requires company members to undergo a comprehensive occupational
health and safety audit of their business and supply chain - to protect some of the most
vulnerable workers in the country;
Regulatory and legislative moves which have caused the decline of Australian shipping and
facilitated the increasing use of Flag of Convenience (FOC) shipping in Australia. FOC has lax
workplace and health and safety standards, with crew members being often reluctant to
provide evidence to the Australian Maritime Safety Authority (AMSA) investigations or safety
inspections;
Refusing to act on the plague of non-conforming building products flooding the country, and
widespread employer non-compliance with the National Construction Code; and
Not implementing industrial manslaughter laws or - in the case of the Queensland
Government- exempting dangerous industries from the law such as mining.
19
Ibid, p 16
15
5. Improving the legislative and regulatory framework
There is inadequate enforcement action being taken by regulators
Workplace safety laws should be enforced when they are significantly breached, whether by criminal prosecution or civil penalty proceeding, even if no injury or death results. The Union has longstanding and grave concerns that that state and territory regulators are not effectively or efficiently enforcing work health and safety laws. This has led to widespread disregard of workplace safety obligation by some employers, leading to more injuries and deaths. There is a desperate need for more, and stronger, enforcement.
Indeed, the failure of state and territory regulators to act has also recently attracted criticism in multiple jurisdictions. For example:
An inquest was recently heard in the Magistrates Court in Burnie into the 2014 death of
Tasmanian roofing contractor Kurt Gorrie. Mr Gorrie fell 6 metres to his death from an
unfinished roof of the King Island Airport extension onto a concrete slab; he was working on
a part of the roof which had no safety mesh on it, and he was not wearing a safety harness.
Evidence was led that Mr Gorrie’s employer, De Jong & Sons Construction Ltd, had refused to
source a crane to move a pack of roofing iron on the grounds of cost. Counsel assisting the
Coroner, Sandra Taglieri, told Coroner Simon Cooper that no prosecution had been brought,
and that the purpose of the Work, Health and Safety Act 2012 was not fulfilled if prosecutions
were not made20;
In South Australia, the Independent Commissioner Against Corruption recently commenced
an evaluation of the practices, policies and procedures of the regulatory arm of SafeWork SA.
This followed from the Office of Public Integrity receiving a number of complaints and reports
about SafeWork SA, including relating to the death of a construction worker, Jorge Castillo-
Riffo, at the Royal Adelaide Hospital site in 2014 and the death of 8 year-old Adelene Leong
who was thrown from a ride at the Royal Adelaide Show in September 2014. In both cases,
SafeWork SA dropped prosecutions after announcing it had withdrawn charges. In Mr Castillo-
Riffo’s case, this decision was made merely days before the hearing was to commence21;
The ACT’s Chief Magistrate, Lorraine Walker, heavily criticised the Office of the Director of
Public Prosecution’s workplace health and safety cases as being “abysmally run” and plagued
by a “lack of diligence” after prosecutors abandoned a case in May 2018. That case involved a
worker being injured when he fell backwards from a service door as he mopped the cabin of
a Q400 turboprop aircraft parked in the airport’s QantasLink hangar on 30 January 2014. The
worker’s employer, Star Aviation, pleaded not guilty and was found to be at a “significant
disadvantage” after it took more than two years for the matter to come to trial, and when it
emerged that defence lawyers and prosecutors still had not agreed on details on the
allegations and the particulars of the charges the company faced, more than four years after
the incident22.
20
‘Critical of no prosecutions’, Leah McBey, The Advocate, 21 June 2018
21
https://icac.sa.gov.au/sites/default/files/Public%20Statement%20Evaluation%20of%20SafeWork%20SA.pdf# overlay-context=content/public-statements.
22
“Star Aviation fall: ACT’s chief magistrate Lorraine Waler criticises DPP’s ‘abysmal’ Industrial Court case,
Megan Gorrey, Canberra Times, 14 May 2018
16
The Australian Maritime Safety Authority (AMSA) and the National Offshore Petroleum Safety and
Environmental Management Authority (NOPSEMA) are other regulators who, in the Union’s view and
experience, seem unwilling or unable to effectively prosecute employers who breach safety laws and
endanger workers. These regulators often have cross-jurisdictional coverage and, all too often, shift
the burden of responsibility from one regulator to another effectively skirting their responsibilities.
They are also plagued by lack of capacity, politicisation and inadequate funding which breeds a lack of
confidence in workers in dealing with safety issues on the job.
The Maritime Union of Australia Division (MUA) of the Union has repeatedly raised concerns with the
AMSA and NOPSEMA that the approach to enforcement and penalty action by these maritime
regulators is grossly inadequate. The responses of these regulators to serious injury and death in the
maritime sector, namely the offshore oil and gas industry, do not function as a deterrent to prevent
unsafe practices by employers, nor do they allow for adequate compensation when a life is lost at sea
due to employer negligence. The absence of a fully functioning regulator in the offshore oil and gas
industry is particularly concerning to the MUA as the work performed in the sector is high-risk, but
not duly recognised as so under the relevant legislation, the Offshore Petroleum and Greenhouse Gas
Storage Act 2006 (OPGGS Act). We discuss the need for legislative consistency in the offshore oil and
gas industry further below.
Indeed, in our experience - across all jurisdictions - there is a general reluctance for inspectors to take
enforcement action (such as the issuing of formal notices) in relation to incidents which amount to
breaches of work health and safety law, but where a serious injury or death has not occurred. For
example, in the NSW construction industry SafeWork has begun promoting the issuing of on-the-spot
fines relating to fall from heights hazards as an alternative to prosecution. Anecdotally, we are
concerned that this approach is informed by a reluctance on the part of regulators which relates to
their oversensitivity to complaints being made by industry employers and their representatives,
leading to inspectors being criticised by the Regulator’s management structure where enforcement
action is taken, or despite low-level enforcement action being taken. In the construction industry in
particular, the remuneration levels of inspectors are inadequate which compromises the ability of the
regulators to attract and retain appropriately qualified inspectors. Regulation is also being outpaced
by technology, leading some Inspectors to put an inappropriate focus on fine technical details rather
than broad safety principles.
The health and safety of workers cannot be ensured unless regulators take a serious approach to all
risks, big and small. It is not enough for regulators to park an ambulance at the bottom of a cliff, and
wait for a worker to fall.
The failure of the regulators to take enforcement action (including through prosecution) – and the
increasing phenomena of prosecutions discontinued at a late stage – is also influenced by the
inadequacy of the investigatory processes undertaken by the regulators. It is overwhelmingly
important that any investigation address not just the immediate cause of an incident, but also the root
causes where there are systemic failures or corporate attitudes which fostered the environment
necessary for the incident to occur.
Case Study 5: Inadequate investigations lead to discontinued prosecutions
In 2014, construction worker Jorge Castillo-Riffo was tragically crushed in a scissor lift during the construction of the new Royal Adelaide Hospital. A prosecution brought against Mr Castillo-Riffo’s employer was dropped just three days before it was due to go to court, and an enforceable undertaking was entered into by Mr Castillo-Riffo’s employer.
17
Due to the persistent lobbying of Jorge’s partner, Pam Gurner-Hall, a coronial inquest finally commenced in
2018. The inquest is part-heard, and will resume in August 2018. At the time of this submission, however, the evidence given by one SafeWork SA Senior Work Health and Safety Inspector involved in the matter indicates:
the Inspector’s understanding was that neither they, nor the other SafeWork SA Officers in
attendance on the day of the accident (several hours after Mr Castillo-Riffo’s death), spoke to any
eyewitnesses;
no one from the SafeWork SA Investigation Unit attended the site of the accident on the morning
it occurred, despite being a 10 minute drive from SafeWork SA’s office. Neither the Inspector, nor
– to her knowledge – any other SafeWork SA officials on site exercised their statutory powers to
investigate at the site on the morning of the accident;
a significant issue in the investigation was whether the control mechanism for the scissor lift which
crushed Mr Castillo-Riffo’s head into the underside of the concrete slab above worked properly.
The inspector agreed that she did nothing to investigate whether the control mechanism had been
touched, altered or moved;
the Inspector was present when the scissor lift concerned was removed from the site of the
accident. When that occurred, it was apparent that there was a problem with the controller. The
inspector’s evidence was that, to her knowledge, no one from SafeWork SA did anything to
investigate how that problem may have related to the accident;
the Inspector made no attempt to establish which individual was responsible for safety
management of the particular area concerned, or who Mr Castillo-Riffo reported to in his
employment;
the measuring aspects of the work environment in which the accident occurred was extremely
important. Notwithstanding this, the Inspector did not take any measurements of critical aspects
of the work environment. Further, potentially important evidence was left on the ground at the
accident site when the SafeWork SA official left, and the machine in question – once SafeWork SA
took possession of it – was stored for a substantial time outside in the elements which resulted in
noticeable deterioration;
the investigation practices at the time, and those of others, were contrary to SafeWork SA’s own
requirements;
the Inspector could not provide any information about the monitoring or auditing of compliance
with that undertaking, other than her belief that it is monitored.
A wide-ranging approach needs to be taken to improve the practical enforcement of work health and
safety laws. Such an approach should include:
Review of the National Compliance and Enforcement Plan (NCEP). The NCEP sets out the
approach regulators are supposed to take to WHS compliance and enforcement, including the
criteria used to guide enforcement decisions. The Union shares the ACTU’s serious concerns
about the adequacy and effectiveness of the NCEP as currently drafted. The NCEP should be
reviewed and improved, and should reflect a move towards ‘hard’ compliance rather than
18
emphasising ‘positive motivators’. Where duty-holders repeatedly breach WHS laws, or a
worker is killed, prosecutions should follow;
Directors of Public Prosecution should be required to give clear reasons when it decides not
to pursue prosecutions, including its reasons for doing so where a workplace accident results
in serious injury or death. For deaths in industries such as construction where there are
multiple contractors and sub-contractors in a supply chain, and multiple PBCUs, an
explanation should also be provided where a prosecution is taken against an employer but
not the head contractor who has overall responsibility for the site.
Case Study 6: Head Contractors are not being held accountable
Irish backpackers Gerry Bradley (27) and Joe McDermott (24) were killed in November 2015 on an apartment construction site in Perth. They were in an area designated for making phone calls and having meal breaks when precast concrete tile panels – each weighing more than three tonnes – fell on them from overhead. The panels had not been individually restrained.
In the months leading up to the deaths, the Union had raised repeated concerns about safety on site, including the lack of supervision and spotting, and the failure to observe exclusion zones. Indeed, the Fair
Work Building Commission (the predecessor to the ABCC) had visited the site three times, however their preoccupation with preventing the union from visiting the site to inspect safety issues prevented them from taking action on the clear safety issues which plagued the site.
Despite the deaths being entirely preventable by what Deputy Chief Magistrate Elizabeth Woods described as “simple and practical steps”, the trucking company responsible – Axedale Holdings Pty Ltd trading as
Shaws Cartage Contractors – was fined only $160,000.
The Head Contractor, Jaxon Construction, was responsible for the site. It chose the subcontractors. Further, it had responsibility for ensuring a safety management system was in place that all contractors complied with; it had a responsibility to plan and coordinate works; and it had a responsibility to ensure that all parties on the site adhered to all applicable legislative requirements. Despite these obligations, WorkSafe did not see fit to prosecute Jaxon Construction effectively stating that they had done nothing wrong.
The lack of effort by the regulator to enforce builder compliance enables self-regulation at the expense of enforcement. The result was the death of Joseph McDermott and Gerard Bradley. Corporations should not be able to handball their responsibilities through the exploitation of corporate and employment structures.
Mandatory Coroner’s Inquiries should be held when a worker is killed at work. It is
increasingly common for coroners not to conduct open court hearings into workplace deaths.
Rather, reliance is placed on the outcomes of investigations conducted by the regulator. This
approach means that investigations which may not have been conducted forensically are not
able to be tested by the calling of witnesses. When matters came before the coroner's court
by way of a hearing, this serves as an important process for family members and engages the
public interest in an important way. It also means the matters tend to be in the news and
public interest attaches to the safety and other concerns that arise. It can also focus the mind
of the prosecutors on their responsibilities. Moreover, coroner’s findings can be an important
tool in driving reform in relation to how accidents are investigated with a view to preventing
19
further industrial accidents. The following observation was made by the Coroner dealing with
the death of Mr Castillo-Riffo:
“This wouldn’t be the first time I’ve run an inquest into an industrial death and then
felt impelled to criticise the lugubrious process of criminal prosecution that ensured
after that particular death…. I made certain comments about the processes involved
in policing industrial deaths and that was almost 10 years ago and it’s a topic that
I’m not going to shy away from this time”23.
A common, publicly available database of completed prosecutions should be maintained by
Regulators. We support the ACTU’s submission that such a database should be created and
maintained to include information about the date of the prosecution, the nature of the entity
prosecuted, the type of issue giving rise to the prosecution, the provision of the Model Act
under which the prosecution was taken, the court in which the prosecution took place, the
plea entered by the defendant, and the sentence imposed by the court. The database should
also include links to all written court decisions;
Specialist Industrial Courts should be allocated, and resourced. Prosecutions should be heard
by specialist courts by judges with industrial and safety expertise and experience. Currently,
there are significant differences between the jurisdictions in relation to the type of court in
which the prosecution is conducted. In NSW, the Union is particularly concerned that the
jurisdiction for work health and safety prosecutions has been removed from a specialist
Industrial Court, to the District Court of New South Wales. The District Court does not have
specialist knowledge of industrial safety matters. Criminal courts are traditionally concerned
with the particular act or omission of an individual; the criminal law is not developed with
corporate offenders in mind. The concepts of “mens rea” and “actus reus”, that is, guilty mind
and guilty act, while making perfectly good sense when directly applied to individuals, do not
easily translate to corporate offenders. In the case of industrial death, it is important that an
adjudicator address offences involving systemic failings and the liability of corporate
employers;
Independence must be secured. As a matter of general principle, prosecuting authorities
should be truly independent of, and not under the control or directions of, the relevant
Minister. Enforcement should be functionally separate from ‘education’; and
A specialist Safety Inspectorate should be established to consider, review and correct the
failures in the performance and behaviour of the current regulators.
In addition, the consistent experience of our officials is that the Regulators are reluctant to inform and consult with unions whose members are involved in a serious incident or fatality. Often, the union is the most consistent point of institutional support available to the families. The failure of the regulators to engage in a co-operative process with the union and its surviving members is not only a major disservice to those workers and their families, but also undermines the ability of the union to educate its members.
23
See Transcript, page 1626, Lines 4 -25
20
Legislative inconsistency in the offshore oil and gas industry
The OPGGS Act should be amended so that it is legislatively consistent with the model Work Health and Safety Act 2011 (Cth) (WHS Act) and Work Health and Safety Regulations 2011 (Cth) (WHS
Regulations), with appropriate consideration given to the specifics of the industry, for example remote location. This would remedy many of the threats to worker health and safety in this high-risk industry. Achieving practicable legislative consistency in the offshore oil and gas industry would also provide an appropriate regulatory framework, and impetus, for the NOPSEMA (and AMSA) to operate as fully-functioning regulators empowered and guided by the involvement of their subject workforces.
Major issues include:
High-risk licensing - The offshore oil and gas industry does not have in place a high-risk
licensing system. Implementation of a high-risk licensing system, which encompasses relevant
training and qualifications ‘designed to minimise the risk of adverse consequences associated
with lack of competency’ in work of such a nature, has been proven to be effective24. The
effectiveness of such a system has been communicated and recommended to the NOPSEMA
on multiple occasions however gaps in the OPGGS have provided reason for the regulator to
avoid implementation. A high-risk licensing system in the OPGGS Act would harmonise it with
Part 4 of the WHS Act and Part 4.5 of the WHS Regulations.
Safety case, stakeholders and consultation - The NOPSEMA purports that its application of,
and strong focus on operator and worker compliance with, a safety case25 approach accounts
for the high-risk nature of the industry and sufficiently mitigates risks. Given the importance
of worker involvement in work health and safety management, it is critical that workers and
their representatives are involved in the development and review of safety cases. In the
experiences of the MUA and its members, the NOPSEMA does not appear to consider its
workforce or workforce representatives as genuine stakeholders and as such, does not
provide any mechanisms for meaningful consultation with its workforce or their industrial
representatives regarding safety cases.
Health and Safety Representatives - Where work health and safety legislation were to be
harmonised in the offshore oil and gas industry, offshore Health and Safety Representatives
(HSRs) would be afforded the same rights as HSRs in onshore industries. Critically, this would
enable HSRs, under the WHS Regulations26, to have the capacity to trigger a review of various
safety management documents, including safety case documentation. Increased involvement
of the workforce, in particular in the NOPSEMAs safety case model, would greatly improve
health and safety outcomes for offshore oil and gas workers.
In general terms, legislative consistency would:
Address issues of high-risk licensing;
Amend deficiencies in the safety case model;
Provide employees and their industrial representatives greater legislative recognition,
thereby facilitating genuine and comprehensive consultation between the NOPSEMA and
its workforce;
24
National Review into Model Occupational Health and Safety Laws, Second Report, January 2009, paragraph 34.8, p 291.
25
An offshore facility cannot be constructed, installed, operated, modified or decommissioned without a safety case in force for that stage in the life of the facility, NOPSEMA, Commonwealth of Australia 2018.
26
Regulations 38(2)(e) and (f), 401(1)(g) and (3), 430(1)(d) and (2), 559(2)(e) and (4) and 569(2)(e) and (5)
21
Improve the recognition and role of HSRs in the high-risk; and
Provide a comprehensive regulatory framework for the national regulators to enforce,
thereby providing a deterrent and preventative effect.
Workers, their families and their unions should be able to prosecute WHS breaches
To make the cultural change necessary to attack the scourge of workplace death, compliance should not be only reactive, but also proactive and preventative. In our experience, it is extremely rare for a regulator to commence a prosecution or civil penalty proceeding for breaches of work health and safety laws where there has not been an injury (e.g. cases of “near misses” or identified failures to provide a safe system of work).
This is a significant problem, because under the Model WHS law, only the regulator is able to bring proceedings. A request can be made to the regulator, and later the DPP, if a prosecution is not brought for any offences other than Category 1 offences. However injured workers, the families of deceased workers, and unions are unable to bring prosecution proceedings directly.
New South Wales is the only jurisdiction to retain access to union prosecutions. However these provisions are restricted to situations where the DPP has declined to bring proceedings. The application of the provision is problematic, not least of all because of the reluctance of the DPP to involve themselves in OHS matters (which means that the requisite referral cannot be made) and because, where penalties are ordered, they are unable to be retained by the prosecuting union (which exacerbates internal resourcing limitations within the unions who may seek to prosecute). Previously, between 1983 and 2011, union secretaries had standing to bring a prosecution under NSW laws and there is no evidence whatsoever that indicates that this ability was abused. To the contrary, all such proceedings were successful.
We strongly argue that the Model Act be amended so that unions have standing to bring proceeding for offences under WHS legislation. Indeed, the enforcement of work health and safety laws for contraventions of work health and safety laws would be considerably strengthened by allowing injured workers, the families of deceased injured workers and their unions to commence proceedings for the imposition of civil penalties where work health and safety laws are contravened. This would share the burden of regulatory enforcement in circumstances where persons more directly concerned in the events are motivated to take action, or where the regulator fails to take action.
Further, any requirement for review by regulator or the DPP should be removed. If a union runs a successful prosecution, it should also be entitled to the benefit of any pecuniary penalty.
The adoption of the regime similar to the civil remedy enforcement regime presently found in the Fair
Work Act 2009 (Cth) (FW Act) would greatly enhance the enforcement of workplace safety laws. Under that regime workers concerned, and their unions, are able to commence proceedings for the imposition of civil penalties where employment laws are contravened27.
To be clear, such an approach should not be at the expense of criminal prosecution proceedings which the Union considers to be an essential aspect of enforcement (we discuss this further below).
However, enhanced enforcement is likely to lead to enhanced compliance.
27
The table in s539 of the FW Act sets out standing, jurisdiction and maximum penalties payable for civil remedy provisions
22
We further submit that the Model Act should be amended to place the onus of demonstrating that it
was not reasonably practicable to reduce or eliminate a risk giving rise to a WHS duty of care offence
on a defendant (a partial reverse of onus of proof).
Where penalties are ordered, they are inadequate
“There needs to be harsher penalties for those who are prepared to “run the risks”
and play a game of “workplace probability”, in order to complete their particular
sphere or scope of works; no worker in the world should ever have to play a game
of probability and hope that they came home safely at the end of their work “shift”.
And in many cases, those who decide upon the “risks” are never the ones who are
exposed to the risks.”
- Dr Gerard Ayers, PhD, MAppSci, GradDipOHM, OHS&E Manager, Construction and
General Division, Victoria / Tasmania Branch
The penalties which are being applied in response to industrial deaths are woefully inadequate.
Because there is no current common, publicly available database of completed prosecutions
maintained by Regulators, it is difficult to obtain reliable data in this regard. However, we do note that
a 2012 paper examining judgements issued by the NSW WorkCover Authority under the Occupational
Health and Safety Acts 1983 and 2000, for offences relating to workplace fatalities heard by the
Industrial Court of NSW from 1988 – 2008, demonstrated that penalties were low, representing
approximately only 18% of the maximum penalty allowable28.
In order to be an effective deterrent, penalties must be significant. It is wholly unacceptable, for
example, that repeat offenders like John Holland – which is worth hundreds of millions of dollars in
Commonwealth Government contracts – continue to accrue penalties in the order of $170,000 -
$180,000 per fatality (see Appendix 2). These outcomes allow large companies to treat the lives of
their workers as a minor cost of doing business. Moreover – and despite this – John Holland is one of
the very few private sector businesses who have been granted a Comcare licence, allowing it to
maintain a self-insurance scheme and manage all of its own workers’ compensation payments in cases
of work-related injury or death. This is wholly unacceptable.
The inadequacy of pecuniary penalties is also exacerbated where small employers are able to evade
the enforcement of penalties ordered by ceasing trading, stripping the business of assets and entering
into insolvency.
Case Study 7: Non-compliance of sub-contractors with already inadequate penalties
On 1 February 2000, Dean McGoldrick fell 12 metres to his death on a Sydney construction site. He was employed by Metal Gutter Fascia Services Pty Ltd, a small company run by sole director John Peter Poleviak.
Disappointingly, WorkCover brought a prosecution in the then-Chief Industrial Magistrates Court which had a penalty cap of $20,000. An extract of a letter written by Mr McGoldrick’s mother, Robyn McGoldrick, to the then-Premier of NSW Morris Iemma reads:
28
‘Another Brick in the Wall’: Responses of the State to Workplace fatalities in the New South Wales
construction industry, Peggy Trompf, A thesis submitted in fulfilment of the requirements of the degree of
Doctor of Philsophy. School of Business, Department of Work and Organisational Studies, University of Sydney,
August 2012
23
“On the 5th of December 2003 I was presented with a Safety Award from Unions NSW. I greatly value the
Award but it is a poor substitute for the loss of my son, 17 year old Dean, in a workplace accident. Dean had only worked for a few days on a Sydney building site at Broadway when he tragically fell to his death on 1st
February 2000.
On the site where my son worked there was no OH&S induction provided, no scaffolding, inadequate supervision and no requirement to wear a harness. My son fell 12 metres to his death. Unfortunately
WorkCover NSW initiated the prosecution of the employer in the wrong jurisdiction with the end result the employer was fined only $20,000. It caused me and my family considerable distress when I found out years later from the CFMEU that the employer only paid $1,800 of this fine. This is unacceptable. It was subsequently established that other employers had also not paid fines arising from fatalities.
When I received my Award in December 2003 I was given a commitment from the former Premier of NSW
Bob Carr that I would be advised when the fine payable following the death of my son is paid. This commitment has not been honoured. I have been advised that the privacy of a rogue contractor is more important than the rights of families and friends of workers killed. I do not accept this nor does the community; I request that there be an amendment to the relevant legislation as proposed by Unions NSW and the CFMEU and that it be done as a matter of urgency. Finally I request you honour the commitment of the former Premier of NSW and advise me when the fine arising from the death of my son is paid.
Payment of the fines even when inadequate represents a form of closure for many families”.
The Union is also concerned about the proliferation of enforceable undertakings. Enforceable
undertakings should not be accepted in cases where workers are seriously injured or killed, and the
Model legislation should be amended to expressly prohibit enforceable undertakings in these
circumstances. Additionally, where the contravening employer has a history of prior convictions
arising from separate investigations, they should not be entitled to the benefit of enforceable
undertakings as a means of avoiding prosecution. Our experience with Comcare, in particular, is that
it has a habit of accepting enforceable undertakings regarding serious work health and safety breaches
and deaths which significantly undermines the effectiveness of sanctions.
Employers should also be prohibited from insuring against safety penalties and fines. The Model Act
should be amended to expressly prohibit insurance contracts being entered into which cover the cost
of work health and safety penalties and fines. Contravening such a prohibition should be an offence.
It is unacceptable that employers should seek to reduce the life of workers to a cost that can be insured
against.
The need for industrial manslaughter laws
Over many years, we have been at the forefront of the campaign to make industrial manslaughter a
specific criminal offence under workplace health and safety legislation. Financial penalties, on their
own, are not an effective strategy or deterrent in ensuring better health and safety at work.
Specifically, financial penalties:
do not ensure that the offenders restructure their workplace to comply with OHS standards;
only have an impact upon the financial returns of the corporation, and not on the motivation
and/or behaviour of the responsible managers;
24
do not ensure any disciplinary action is ever taken against those who should be held
responsible and accountable (especially if the hazards and risks were previously known to
them);
do not require management to review their systems of operation so that the offence will not
reoccur; and
can be easily avoided by restructuring the corporate structure or identities or by moving the
organisation’s assets to other corporate entities29.
Effective deterrence needs to pierce the corporate veil. Corporate business must be held accountable and responsible, both morally and legally.
The proposition that the threat of personal prosecution is a substantial motivator to ensure compliance with work health and safety obligations is well-established30. Moreover, if law is a reflection of society’s values, then criminal sanctions have both a moral and symbolic role to play. As renowned WHS academics Neil Gunningham and Richard Johnstone have stated:
“…symbolic or moral aims of criminal sanctions seek to apportion moral blame for criminal
acts, and officially demonstrate society’s intolerance of harmful behavior…we use the
criminal law when our sensibilities are assaulted – when, in addition to redressing the
particular problem, we want both to condemn the wrongdoers’ conduct, and to stigmatize
them. The criminal law both reflects existing public sentiments about the heinousness of
certain activities, but can also be used to shape such perceptions, particularly if used in
conjunction with media campaigns showing the reprehensible aspects of the behavior, while
simultaneously emphasizing society’s condemnation of that behavior…”31.
Gunningham has also identified that regulation and personal liability, reinforced by credible enforcement, is the single most important motivator for a CEO, in relation to their responsibility in ensuring high-level OHS standards are both implemented and maintained at their organisations’ workplace32.
The introduction of a uniform industrial manslaughter offences would demonstrate the significance of workplace health and safety as a matter of public policy, and to help bring about cultural change in workplace health and safety practices.
Currently, the only jurisdictions which contain industrial manslaughter provisions are the ACT and
Queensland, although we note the Victorian Andrews government’s recent commitment to legislating an industrial manslaughter offence should it win another term of government, and commend it for
29
Ayers, Gerard 2013, Corporate Manslaughter legislation (A Brief summary of Australia’s experience. Report prepared on behalf of the Australian Council of Trade Unions; Gunningham, N., & Johnstone, R. 1999,
Regulating Workplace Safety: systems and sanctions. Oxford University Press, Oxford
30
Bailey, T, J Woolley and S Raftery (2015) “Compliance and enforcement in Road Safety and Work Health and
Safety: A Comparison of Approaches Journal of Health, Safety and Environment, 2015; 31(2); Clough, J (2007)
“A Glaring Omission? Corporate Liability for Negligent Manslaughter” 20 Australian Journal of Labour Law 29;
Purse, K and J Dorrian (2011) “Deterrenace and Enforcement of Occupational Health and Safety Law”, The
International Journal of Comparative Labour Law and Industrial Relations 27(1)
31
Ibid, at pp.193-194
32
Gunningham, N. 1999, CEO and Supervisor Drivers: Review of literature and current practice, Report commissioned by the National Occupational Health and Safety Commission.
25
doing so. We also note that the Queensland legislation excludes the mining industry. This is absurd
and unjustified, and we call upon the Queensland government to remove this exclusion.
The Union strongly supports the inclusion of an industrial manslaughter offence in the Model WHS
laws, and within the legislative framework for work health and safety. In particular, the offence:
should include both acts and omissions which substantially contributes to death;
should apply to corporate duty-holders and officers who have the capacity to significantly
affect health and safety outcomes. The cause of action should go not just to the immediate
cause of a death, but also to the root cause of it;
should carry significant penalties, including substantial periods of imprisonment; and
should encompass circumstances where any person is killed. This would protect members of
the public (such as the three pedestrians who were killed when a wall on the edge of a Grocon
site collapsed in Melbourne in 2014), as well as ensure justice in industries such as
construction where there are multiple contractors and sub-contractors engaged on a site /
where multiple Person Conducting a Business or Undertaking (PCBU) exist under the WHS Act.
Other improvements to the Model WHS Framework which would improve safety
The Construction and General Division of the Union recently made a submission into Safe Work
Australia’s review of the model OHS laws which made a number of recommendations. That submission
is available on Safe Work Australia’s website33. The Union’s recommendations work to improve the
legislative framework in a way that will positively address the underlying causes of workplace
fatalities. The recommendations included (but were not limited to):
Improving work health and safety “right of entry” provisions. The capacity of union officials
to enter workplaces to assist in protecting members from unsafe work practices is critical. The
Model Act should be amended to remove the requirement for written notice in relation to
suspected work health and safety contraventions. However if a notice requirement is
retained, it should be given as soon as is reasonably practicable after entering a workplace,
except where giving the notice would defeat the purpose of the entry to the workplace or
unreasonably delay the permit holder in an urgent case. Further, notices in relation to
suspected contraventions should be limited to identifying the nature of the suspected
contravention, and permit holders should be specifically able to investigate suspected
contraventions after entering a workplace based on matters observed whilst on site after
lawful entry (irrespective of whether or not they were known at the time of the initial entry;
Case Study 8: the Union is being consistently obstructed from performing work health
and safety inspections
The capacity of union officials to enter workplaces to assist in protecting members from unsafe work practices is critical, but the union is consistently obstructed from performing its safety role by aggressive and uncooperative employers, and the obstructionist ABCC.
33
https:/zengage.swa.gov.au/32134/documents/79615
26
The capacity of union officials to enter workplaces to assist in protecting members from unsafe work practices is critical, but the union is consistently obstructed from performing its safety role by aggressive and uncooperative employers, and the obstructionist ABCC.
Employers consistently obstruct our officials where they are seeking to investigate suspected contraventions including by refusing to acknowledge reasonable suspicions, by calling police without any reasonable basis for doing so and by taking advantage of technical minutia in entry notices.
At the Perth Children’s Hospital site – a site plagued with significant safety issues – the union was repeatedly obstructed by John Holland when trying to deal with concerns from workers over asbestos on site (just one of the serious safety issues identified at the site):
In 2012:
Deadly asbestos was unearthed during civil works. Union officials were obstructed for hours, and
denied the right to represent workers in an investigation. John Holland refused union requests for
documentation relating to the discovery;
Comcare launched an investigation into the continued obstruction of union officials who were
trying to represent workers in regard to safety; a warning was issued, but a copy of the warning was
not released to the union;
Comcare held two mediation meetings between John Holland and the Union in order to make clear
to John Holland that the union had a right to be a party to safety investigation, and to be on site to
speak to workers. John Holland responded that this was a “grey area” in their view.
In 2016:
Asbestos is again discovered on site. Workers contact the union and express concern about the
discovery, and John Holland’s handling of the discovery;
Workers from a painting subcontractor contact the union to complain that they were being made
to remove asbestos containing material but were not qualified to do so;
The union requests legal access to the site four times, and was denied four times;
Comcare attends site and attempts to take the unions’ concerns about asbestos and untrained
workers being exposed to the deadly fibres to John Holland, who respond that there were no OHS
issues on site and that there was no reason for alarm;
The union requests that Comcare meet with representatives from the site without management
present. Comcare declines;
Eventually the state government organized a meeting of all parties. As a result of the meeting, and
tour of the worksite, union representatives were of the opinion that the site should be shut down
while proper asbestos removal took place. This did not occur;
Workers expressed concern that products had arrived on site from a supplier who had recently
been found to be using asbestos in their products. The union was again refused entry. John Holland
insisted that there was no issue but, in any event, they would investigate the issue themselves.
Workers were rightly upset. The products were being cut up on site, and workers were covered in
dust as a result. 27
Appropriate amendments to ensure that designated workgroups are fairly chosen and
properly representative, and that Health and Safety Representatives (HSRs) are fairly
elected and supported. The designation of workgroups is an essential pre-requisite to the
election of HSRs under the Model Act. It is imperative that the task of assigning workgroups is
not discharged in a cursory manner, and that employees have proper access to representation
without the need to make specific requests for that representation to the employer (which
may expose their union membership status in an undesirable manner). In the construction
industry, which is characterised by increasingly complex contracting and sub-contracting
arrangements, there should be a requirement for an overall HSR to be elected by workers who
is able to work across designated work groups;
Ensuring that HSRs and Health and Safety Committee’s (HSCs) are properly trained.
Mandatory prescribed training for HSRs and HSC members should be conducted and not
unduly delayed by obstructive employers, and workers must be entitled to a choice of
provider approved by the regulator. Further, the restrictions around training for the exercise
of HSR functions, particularly in relation to the issuing of Provisional Improvement Notices,
should be removed;
Issue Resolution procedures are deficient and need to be strengthened. The current Model
Act fails to appropriately recognise the role of unions in the resolution of safety disputes,
provides no straightforward mechanism for unions to assist workers and HSRs who are being
undermined by difficult PCBUs or to otherwise resolve disputes, and unfairly excludes unions
from participating in dispute resolution as initiating parties. Unions should have the right to
notify safety issue/disputes on behalf of their members, including where matters affect
multiple workgroups and where HSRs have been elected. Further, any worker should be able
to request the assistance of their union to assist HSRs, regardless of whether or not the union
officer involved is a permit-holder. The ability for HSRs to be assisted by union representatives,
with respect to both on-site and representative activities, needs to be understood as an
ordinary and expected practical application of the model WHS legislation;
Internal and External Review provisions are deficient and need to be strengthened. Where
an inspector acts inappropriately, or refuses to act at all, the issue resolution procedures come
to a halt. The legislation does not include an effective mechanism through which a party,
whether an HSR, a worker, or a union can satisfactorily access an appeal body. Unions are
excluded from acting as initiating parties in applications for internal and external review.
Despite the functions and powers provided to HSRs in the legislation, the relative power
imbalance between such individuals and their employer often makes it impractical for an HSR
to act as an initiating party in the commencement and resolution of a safety issue. These
provisions must be reformed.
28
Appendix 1: Resolutions passed at the Union’s National Conference,
June 2018
Health and safety
Conference recognises the paramount importance and responsibility of the Union towards all issues around workplace safety. We must always ensure that our members are not exposed to unsafe work conditions and are educated in all spheres of safety rights and laws. We must organise non-members into our Union and fight insecure work to improve Workplace Health and Safety across our Union’s industries and sectors.
The level of fatalities and injuries remains unacceptably high across our industries and each workplace fatality and serious injury is a travesty that could have been avoided. Families and workmates affected should have been spared the trauma of unsafe workplaces and the fact that too many employers’ place productivity and profitability before safety is a disgrace.
Workers, Health and Safety Representatives (HSRs), organisers and officials should have an unfettered legal right to stop work to diminish the risk of injuries, fatalities and industrial disease, especially after a workplace incident or close miss and in order to show respect to fallen or injured comrades.
The achievement of these legal rights, especially for organisers and officials are vital in the context of increased insecurity of work in many sectors our Union has coverage for through casualisation and increased use of labour hire where workers legitimately worry about their future employment prospects if they speak out about safety.
Conference notes the absurd approach of the Queensland government in excluding the mining industry from the recently legislated industrial manslaughter laws.
Conference supports the Union’s continued fight to; improve and enforce safety laws, organise to advance health and safety in the workplace, facilitate the election in the workplace of HSRs, support, educate, resource, coordinate and assist HSRs and delegates and ensure negligent employers are jailed and corporations are severely penalised where death or serious injury is caused, or serious wilful negligence is proven.
Conference calls on the Union to coordinate and link the safety struggles of all divisions with a view to a single national campaign with sector and industry specific elements and consider the merits of holding a cross divisional Health and Safety Conference.
Conference calls on the Union to continue to fight for significant improvements to workers’ compensation schemes and other insurances.
Conference remains committed to ensuring that workers in all our industries return home in one piece every night and day. Safety before Profit.
Safety regulators
Conference recognises that safety is a critical issue for all workers. Conference calls on the Union to pay constant campaigning attention to positively reforming the various safety regulators and their current lack of capacity to effectively deal with issues affecting workers on the job.
AMSA, NOPSEMA, and all regulators are currently unable to deliver outcomes for workers on the job or effectively deal with employers and corporate power in resolving safety issues in the interest of workers. Conference calls for the establishment of a safety inspectorate to address these failures.
29
These regulators often have cross-jurisdictional coverage and all too often shift the burden of responsibility from one regulator to another effectively skirting their responsibilities.
This lack of capacity, politicisation and funding of safety regulators breeds a lack of confidence in workers in dealing with safety issues on the job.
Currently regulators seem unwilling or unable to effectively prosecute employers who breach safety laws and endanger workers.
The Union will work across all divisions with shared regulatory coverage to mount campaigns that effectively reform the regulatory regimes in the interest of working people’s safety.
Conference condemns those regulators who collude with employers to breach safety laws.
30
Appendix 2: John Holland’s abysmal safety record
CASE 1: Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515
Mark McCallum was working at the Dalrymple Bay Coal Terminal in Queensland on 6 March 2008. The work involved the transportation of precast concrete decks by a platform supported by two jinkers propelled by a front end loader. Mr McCallum’s leg became caught amongst wooden scaffolding planks as the wheels of the front jinker began to press down and run over the planks. Another employee working alongside him believed that he could not safely assist Mr McCallum to free himself so he ran to the right side of the jetty so that he could see a third employee to signal for the transportation unit to stop. The unit stopped a few seconds later but by this time the front wheels of the front jinker had passed over Mr
McCallum’s trapped body. Emergency assistance was requested and a paramedic arrived at the scene, but nothing could be done to assist Mr McCallum who had suffered fatal injuries. The company admitted that its conduct had caused Mark McCallum’s tragic death.
It did not carry out a plant hazard assessment for the piece of plant that killed Mr McCallum. An assessment would likely have identified a need for a remote braking system and radio protocol that would have prevented this tragedy.
The Court said:
“The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence …towards the higher end of the scale”
And:
“The size of the plant involved, the vulnerability of workers in front of it, and the very real risk of serious injury or death in the absence of a fail-safe means of immediate emergency communication does suggest a systemic failure by the respondent rather 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” as contended by the respondent”.
John Holland was fined $180,000.00.
CASE 2: Comcare v John Holland Pty Ltd [2009] FCA 771
This case concerned a contravention at a worksite at Koolyanobbing railway siding in Western Australia, where the repair of rail tracks was being undertaken in November 2007. Welding activities were being undertaken, at the company’s behest and direction, unsafely, near a fuel source. A fire broke out and an employee suffered second degree burns to 20% of his body.
The Court said that the company’s conduct was objectively serious and that the consequences could have been far more serious but for immediate action taken by another employee. It found that the injured employee had never seen the company’s documentary procedures relating to refuelling in proximity to a heat source. A fine of $124,960 was imposed.
31
CASE 3: Comcare v John Holland Pty Ltd [2012] FCA 449
The incident that caused Wayne Moore’s death occurred on 19 March 2009 at the Mount Whaleback mine in WA. Unsecured grid mesh Mr Moore was standing on and which had not been secured in accordance with Australian standards when it was laid, gave way, causing him to fall 10 metres and sustain fatal injuries.
Two previous incidents involving grid mesh falling to the ground, labelled by the Court as ‘near misses’, had occurred just days before. Significantly, John Holland Pty Ltd had failed to report these incidents (of which its management had actual notice) to the SRCC. No action was taken after these earlier incidents to rectify a serious occupational health and safety issue.
The Court said there were measures open to John Holland Pty Ltd that were reasonably practicable and would have prevented Mr Moore’s tragic death. Specifically, it found that there were no adequate reporting procedures in place in regards to the incidents. The Court was minded to impose the maximum penalty of $242,000 available under the Act. The incident was the result not of inadvertence by an employee, but a fundamental systematic failure by John Holland Pty Ltd.
The Court lamented that the maximum penalty imposed was insignificant compared with the loss of human life and that large corporations like John Holland Pty Ltd might be expected by the community to pay substantially more than the prescribed maximum penalty in the circumstances.
John Holland gave an undertaking to ensure that they would “use their best endeavours to observe and implement industry best practice in relation to work health and safety”.
CASE 4: Comcare v John Holland Pty Ltd [2014] FCA 1191
On 30 December 2011 Anthony Phelan was working on sinking of the railway tracks to and from Perth
Central railway station. He was operating a high pressure water and air mist hose cleaning debris from the rail tracks. He was wearing earplugs. At the same time, about 160 metres further up the rail tracks was a hi-rail vehicle. The hi-rail vehicle was located on a decline. During the offtracking process, the hi-rail vehicle lost its braking capability. It started descending the decline gathering momentum as it went.
The employee operating the vehicle lost control of it. He sounded the vehicle’s warning horn. Mr Phelan was directly in the path of the runaway vehicle. There were warning shouts from other workers. Mr Phelan apparently did not hear the warning horn or shouts because of the earplugs he was wearing and the noise from the hose he was using. The hirail vehicle struck him and he was fatally injured.
The accident that killed Anthony Phelan was determined by the Court to have been foreseeable. The Court said neither John Holland Group company had taken steps identified by both of them to be necessary to discharge their obligations in relation to their employee’s safety. This was made worse by the fact that the companies had been sent a safety notice by the Office of Rail Safety Western Australia following a similar incident involving a runaway vehicle before the death of Mr Phelan and had failed to take remedial action. That notice advised the companies of the need to restrain vehicles to prevent the potential for
‘runaway’. The Court noted that the death of Mr Phelan was the third fatal accident in 5 years that had occurred at sites JH Pty Ltd controlled.
32
It concluded: The need to remind the (companies) of the importance of constant vigilance in relation to workplace safety, is particularly important because (they) operate in an industry which on a daily basis requires their employees to carry out inherently dangerous activities or to operate, and work in the vicinity of, vehicles which have the propensity to put their lives at risk. Constant vigilance was not present in the circumstances of this tragic case. The result was that a man lost his life… The two JHG companies were fined $180,000 each.
CASE 5: Comcare v John Holland Pty Ltd [2015] FCA 388
John Holland Pty Ltd failed to take all reasonably practicable steps to protect the health and safety of its employees in relation to an incident that occurred on 1 December 2011 on the Airport Link Tunnel project in Brisbane. The incident involved a metal bridge being dislodged and falling to the ground, striking an employee of John Holland in the head. The employee, Alexander Hogg, suffered serious lacerations and other injuries. Other employees were also exposed to risk or injury from the dislodgement of the metal bridge. The Court found that the company had: - failed to conduct a formal risk assessment; - failed to provide the work crew with any information or training; - failed to take steps reasonably practicably open to it which would have enabled maintenance of a safe working environment. The event that led to Mr
Hogg being injured was foreseeable. The Federal Court imposed a $110,000 fine on John Holland Pty Ltd.
CASE 6: Comcare v John Holland Pty Ltd [2015] FCA 388
In June 2016, John Holland pleaded guilty in the Adelaide Magistrate’s Court to two charges of failing in its work health and safety duty during construction of the city’s South Road Superway, in an incident that endangered the lives of two Adelaide motorists. A 40 kilogram section of concrete pipe broke off and fell around 15 metres into evening peak hour traffic. The pipe snapped because it was not properly supported.
The company was convicted and fined $130,000 in what was the first criminal prosecution brought by federal regulator Comcare under the Commonwealth Work Health and Safety Act. The Court found John
Holland did not carry out a risk assessment for the job or ensure the work was done safely, exposing the drivers to the risk of serious injury or death.
This was the first criminal OHS prosecution against John Holland.
CASE 7: Comcare v John Holland Pty Ltd [2016] FCA 501
On 29 September 2011, Sam Beveridge, a 40 year old diesel fitter employed by John Holland Pty Ltd on the Brisbane Airport Link project died after being struck by a falling beam whilst performing work on the formwork that was used to pour suspended concrete slabs which formed the roof of the tunnel. Mr.
Beveridge suffered severe crush injuries to his head, neck and chest. He died in hospital two days later.
John Holland admitted it failed to provide Mr Beveridge with training on risk or control measures for the work, or a safe system of work for the cutting of the formwork. “In this case there was a clear failure to take all reasonably practicable steps to ensure this work was carried out safely,” the CEO of Comcare said after the decision. “Detailed risk assessments are fundamental requirements in identifying hazards and ensuring the health and safety of workers, and that did not happen here.” The company was fined
$170,000.
33
Attachment B1
Application by John Holland Pty Ltd
John Holland Group Pty Ltd
John Holland Rail Pty Ltd
Submission of the Construction, Forestry, and Maritime Employees Union,
Construction and General Division
1. Each of John Holland Pty Ltd, John Holland Group Pty Ltd, and John Holland Rail
Pty Ltd (the John Holland entities) has applied for an extension to its self-insurance
licence under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
2. The Construction and General Division (C&G) of the Construction, Forestry and
Maritime Employees Union (CFMEU) has members employed by the John Holland
entities and whose interests will be affected if the extension applications were
granted, and has therefore been invited to make a submission in relation to the
applications.
3. CFMEU C&G opposes the John Holland entities’ applications being granted, for the
reasons set out below.
Granting the John Holland entities’ applications would be contrary to the interests of their employees
4. Granting the John Holland entities’ applications to extend their self-insurance licences
would be contrary to the interests of employees covered by the licence. This is
because those employees’ workers’ compensation entitlements are less under the
Comcare scheme than they would be under the state-based schemes that would
otherwise apply. The extension applications should therefore be dismissed.
5. That workers’ entitlements are reduced under the Comcare scheme may be illustrated
by reference to the following hypothetical example.
John Smith, a 50-year-old Carpenter in Victoria, contacted the CFMEU for
assistance after suffering from a work-related injury. Specifically, John injured
his lumbar spine as a result of repeatedly lifting heavy loads manually.
John was assisted in lodging a WorkCover claim through the Victorian
Workcover scheme, which was accepted within 38 days. He was referred to
external lawyers for advice about potential compensation claims.
John commenced receiving payment for medical treatment which was
important, as he was undergoing intensive physiotherapy treatment. John was
also covered for his time off work while he focused on his recovery. He also
got back paid for his time off work as he was able to provide valid WorkCover
Certificates of Capacity. John received 95% of his pre-injury average weekly
earnings (PIAWE) including overtime.
After 13 weeks, John was still unable to return to work, and his loss of wages continued to be paid at 80% PIAWE. At this stage, John was also entitled to
EBA top-up payments made by the Employer.
John’s injury was not recovering as hoped, and he was soon referred to a
Neurosurgeon for examination where he was recommended to undergo a discectomy. John underwent a discectomy with the costs of the procedure paid for by the Insurer. He continued to receive his loss of wages during and after the surgery.
Unfortunately for John, the discectomy did not render him relief and he was later recommended to undergo a fusion which was again, paid for by the
Insurer, including continuing to pay his loss of wages as he has not returned to work for now, 18 months. After 12 months on WorkCover payments, Incolink provided top-up payments to assist with his economic loss.
Once John’s treatment stabilised, he then, with legal assistance, pursued an impairment claim where he rendered a 20% whole-person impairment rating and received approximately $60,000.00.
Given that John was still continuing to experience ongoing pain, restrictions and significant consequences relating to his back injury, he then pursued a
Common Law damages claim.
John successfully established that he was suffering from a serious injury, the main focal point that he was still unable to return to work after 3 years, and had to obtain assistance from his wife to perform activities of daily living due to the pain and restriction in his back. John was successful in establishing serious injury for both pain and suffering and loss of earnings.
During negotiations John and his legal team were able to establish his employer was at fault for his injury. The Defendant made an offer to John that he happily accepted as it fairly represented his loss. This offer included compensation for pain and suffering and loss of earnings, past, present and future including superannuation. John’s loss of earnings were paid until age
64 as agreed by all parties. This matter was not litigated.
John has now been able to close this chapter of his life, and focus on his ongoing management of his injury whilst watching his kids grow up. Despite receiving lump sum damages, John’s medical expenses, including his opioid and serotonin medication, will continue to be paid by the Insurer for as long as they are related to his work-related back injury.
If John has a dispute with his insurer, he can conciliate at the Workplace
Injury Commission which will be at no cost to him and is generally concluded within a few months. He may also have other non-adversarial options
available to him such as the Workplace Compensation Independent Review
service, prior to needing to proceed with a litigated process.
6. By contrast, John’s workers’ compensation entitlements would be less in the Comcare
scheme than under WorkCover. This is because:
a. Under Comcare, John is not able to pursue a Common Law claim against his
employer for any of his economic losses (past or future). He would also be
unable to commute his future benefits into a lump sum.
b. Instead, John’s only option would be to remain “on the Comcare scheme",
constantly needing to engage with the claims management team. Amongst
other things, he will have to regularly submit medical certificates to establish
his ongoing entitlement to incapacity benefits. Further, his superannuation
balance will suffer, as no payment is required to be made into it when he is on
benefits and he cannot claim this loss at Common Law.
c. Under Comcare, unlike WorkCover, there is no provision for a claim to be
deemed to be accepted in the absence of a response from the employer. This
unfortunately means that some workers spend significant periods of time
waiting to receive compensation for their injuries.
d. While John would have been able to access similar benefits under Comcare in
the initial stage of his claim, he would receive less over the long term. For
example, under Comcare, John’s time off work would have been compensated
based on his “normal weekly earnings”, which only includes regular overtime
and penalties, and is paid at 100% for 45 weeks but only 75% from that point
until retirement age. By comparison, under WorkCover, John receives 95% of
PIAWE for the first 13 weeks, and 80% from that point until retirement age.
e. John will need to seek approval for, or reimbursement of, his medical
expenses. If he wants to access any household assistance, he will need to get
evidence to convince his claims manager of this.
f. John can be sent by his claims manager for a medico-legal examination as
frequently as once a month, and the consequences of failing to attend can
include suspension of his benefits.
g. It is unfortunately the experience of many claimants on long-term Comcare
benefits that they will receive unfavourable decisions from their claims
manager (such as ceasing certain entitlements or denying treatment costs). If
they wish to dispute these decisions, they must bring proceedings in the
Administrative Appeals Tribunal, often incurring legal costs and delay as a
result.
7. John would also receive greater workers’ compensation benefits in other state-based
workers’ compensation schemes outside Victoria than he would in Comcare. We can
provide further information in relation to those other schemes should this be of
assistance.
8. One of the reasons that John’s WorkCover entitlements are more beneficial than his
Comcare entitlements is that the primary purpose of Comcare is to provide workers’
compensation entitlements for workers in the Commonwealth public service, who are
overwhelmingly office-based. The Comcare scheme is not appropriate to the
construction and maintenance industries, or the needs of construction workers in
highly manual roles like John’s.
9. Further, granting the John Holland entities’ applications would continue to place an
unreasonable additional burden on Comcare’s limited resources, and detract from its
capacity to deliver its core functions in respect of Commonwealth public service
employees. It would be preferable for the John Holland entities and their employees to
instead be covered by the state and Territory workers’ compensation and work health
and safety schemes, and to be regulated by the specialist authorities which administer
them.
10. Should the John Holland entities’ applications be granted, injured workers like John
will continue to find themselves stuck “in the system”, attached to the longtail nature
of the Comcare scheme for years. They, and their families, are forced to cope with
reduced compensation than they would otherwise receive for their injuries, at a time
when they most need certainty due to the precarious nature of their working lives
post-injury.
CFMEU C&G
19 February 2024
Attachment B2
Application by John Holland Pty Ltd
John Holland Group Pty Ltd
John Holland Rail Pty Ltd
Further submission of the Construction, Forestry, and Maritime Employees Union,
Construction and General Division
1. On 19 February 2024, CFMEU C&G made a submission opposing the applications by
the above John Holland entities to extend their self-insurance licences under the SRC
Act (the 19 February Submission).
2. This submission supplements the 19 February Submission. Terms that are defined in
the 19 February Submission continue to have the same meaning in this document.
Continued application of Commonwealth WHS Act to John Holland entities is contrary to the public interest
3. In addition to the matters set out in the 19 February Submission, granting the John
Holland entities’ extension applications would also be contrary to the public interest
because it would result in the continued application of the Work Health and Safety Act
2011 (Cth) (WHS Act) to the John Holland entities.
4. The WHS Act applies to the John Holland entities as:
a. each John Holland entity was a “non-Commonwealth licensee for the purposes
of the Occupational Health and Safety Act 1991 immediately before the
commencement of” the WHS Act on 1 January 2012;1 and
b. no day has been prescribed by regulations made under the WHS Act as the end
of the “transitional period” for any of the John Holland entities.2
5. As a result, until the transitional period comes to an end, the WHS Act applies, to the
exclusion of State and Territory occupational health and safety legislation:3
a. to the John Holland entities;4
b. to any persons carrying out work “in any capacity” for the John Holland
entities;5 and
c. to any places where “work is carried out … for a business or undertaking
conducted by” the John Holland entities.6
1
WHS Act s 4 (definition of ‘non-Commonwealth licensee’); Occupational Health and Safety Act 1991
(Cth) (as at 31 December 2011) s 5 (definition of ‘non-Commonwealth licensee’).
2
Ibid s 12(6); Work Health and Safety Regulations 2011 (Cth) (WHS Regs) reg 12A.
3
WHS Act s 12(5).
4
Ibid s 12(4)(a).
5
Ibid s 12(4)(b).
6
Ibid s 12(4)(c).
6. The legislative policy of the relevant provisions is clearly that the WHS Act should not
apply at all to new self-insurers, and that it should cease to apply to pre-existing self-
insurers after a certain period. It is contrary to that clear policy for the grandfathered
application of the WHS Act to be extended ad infinitum, which is facilitated by the
extension of the self-insurance licences ad infinitum.
7. The SRCC’s decision on the John Holland entities’ extension applications will not
directly affect the statutory criteria for the application of the WHS Act to those
entities. However, the end of the grandfathered application of the WHS Act has only
ever been prescribed for entities that have exited the Comcare scheme.7 That is, it
appears to be practically necessary if not legally sufficient that, for the WHS Act to
cease to apply to the John Holland entities, they must exit Comcare.
8. There are numerous reasons why the WHS Act and Comcare scheme should no longer
apply to the John Holland entities, including those listed in the 19 February
Submission. In addition to those matters, the current arrangement is clearly contrary
to the public interest.
9. It is an unreasonable strain on Comcare’s finite resources for the John Holland entities
to remain covered by the Comcare scheme or the WHS Act. The John Holland entities
are the only commercial construction companies in this category. It is redundant to
observe that construction is an extremely dangerous industry with some of the highest
rates of workplace injury and fatality in Australia, and that the health and safety risks
involved in the construction industry require a detailed and specialised approach.
10. In those circumstances, it is a complete waste of taxpayer funds for Comcare to be
obliged to replicate the specialist occupational health and safety regulation of the
construction industry that already exists at the State and Territory level solely for the
purpose of what is effectively a bespoke arrangement for just three members of a
single corporate group. Without intending to criticise Comcare in any way, this
ongoing, pointless drain on its resources must inevitably result in poorer outcomes in
other areas.
11. Similarly, the continued application of the Comcare scheme and WHS Act to the John
Holland entities also results in fragmentation and inefficiency for other participants in
the construction industry, which are also required to devote their finite resources to
additional compliance with a separate regulatory scheme to those which apply to all
other industry participants, simply to cater to the John Holland entities.
12. This fragmentation and inefficiency is obviously contrary to the rhetoric often used to
justify the application of the Commonwealth scheme to private companies.
7
These are Hollard Insurance Partners Ltd, MLC Wealth Ltd, and Vicinity Centres PM Pty Ltd: WHS
Regs reg 12A.
13. There is simply no good reason for this bespoke arrangement to continue. It is
contrary to the clear policy of the WHS Act. It is an obvious waste of public resources.
It is clearly inefficient from the perspective of anyone other than the John Holland
entities.
Safety record of the John Holland entities as self-insured licensees
14. The safety record of the John Holland entities speaks for itself. We refer to the
attached document setting out their convictions for offences against the WHS Act,8
which is supplemented in the Appendix below.
15. But these cases are only the very tip of the iceberg. Comcare’s own data about the
incidence of injury claims involving the John Holland entities give a fuller picture of
their record of workplace injuries.
16. A copy of Comcare’s records of the incidence of claims for the years 2020–2023 is
attached to this submission.9 Those records indicate that John Holland Pty Ltd and
John Holland Rail Pty Ltd had a drastically above average incidence of claims,
accepted claims, and claims involving at least one week’s lost time. Indeed, for that
entire period, John Holland Pty Ltd was the scheme participant with the highest
incidence of injury claims in each of those categories by a significant margin.10
17. The below table, which is derived from Comcare’s records, illustrates the discrepancy
between the incidence of injury claims involving the John Holland entities compared
to other participants in the Comcare scheme.
Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
2020-21 410,350 15.2 11.1 6.7 6
Scheme 2021-22 446,407 12.8 9.5 6 6.2
2022-23 451,965 13.5 9.7 5.8 6.2
Premium
2020-21 186,126 7.9 4.9 3.5 11.6
Payers
8
This document is an appendix to the CFMEU C&G submission to the 2018 Senate inquiry into “The
framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia”.
9
These are accessible via Comcare’s website: https://www.comcare.gov.au/scheme-legislation/scheme-
performance/claims-performance.
10
Save perhaps in 2022-2023, when John Holland Rail Pty Ltd (which reported only 6 employees in that
year) had a higher incidence of claims lodged and accepted.
2021-22 196,156 6.5 4.1 3.1 12
2022-23 194,670 7.6 4.3 3 13.2
2020-21 224,224 21.1 16.3 9.3 5.3
Licensees 2021-22 250,251 17.8 13.8 8.3 5.6
2022-23 257,295 17.9 13.8 8 5.6
2020-21 3,600 9.7 8.6 2.2 3.3
John
Holland
2021-22 3,644 10.7 9.3 1.9 4.9
Group Pty
Ltd
2022-23 3,768 9.8 6.6 0.3 N.P
2020-21 1,603 102.9 96.1 28.1 2.2
John
Holland 2021-22 1,429 102.2 96.6 24.5 4
Pty Ltd
2022-23 1,034 122.8 111.2 18.4 4
2020-21 185 64.9 59.5 27 N.P
John
Holland
2021-22 175 45.7 51.4 17.1 6
Rail Pty
Ltd
2022-23 6 333.3 166.7 N/A N/A
18. Given the John Holland entities’ record of convictions for offences against the WHS
Act and other significant safety incidents, and their substantially higher incidence of
injury claims compared with all other participants in the Comcare scheme, it cannot
be said that the continued application of the Comcare scheme or WHS Act to those
entities has done anything to promote either compliance with the law or improved
safety outcomes for workers. For the reasons set out in this document and in the 19
February Submission, the SRCC should refuse the John Holland entities’ applications
to extend their self-insurance licences, with the result that the WHS Act longer applies
to them.
CFMEU C&G
18 April 2024
Appendix – Further safety incidents and prosecutions involving John Holland
Date Incident Case reference
10 February 2021 A 20-year-old worker is
hospitalised after being
struck by a two-tonne casting
mould that fell from a gantry
crane he was operating at a
precast concrete plant in
Benalla manufacturing tunnel
and bridge segments for the
John Holland/CPB joint
venture West Gate Tunnel
Project
May-July 2020 Three workers are
hospitalised after seriously
injuring their hands on the
West Gate Tunnel Project, a
John Holland/CPB joint
venture, including what the
project’s safety director
described as an
“unprecedented cluster” of
safety incidents in a two-
week period involving two
traumatic finger injuries and
two plant malfunctions
6 February 2019 On 5 February 2021, criminal
(prosecution commenced 5 proceedings were
February 2021 and commenced in the Local withdrawn on 27 July 2021) Court of New South Wales
against John Holland Pty Ltd
for an offence against section
32 of the WHS Act. The
proceedings related to an
incident on 6 February 2019
at the Clarence Correctional
Centre project near Grafton in
which a labour hire employee
was working on the roof of
the maximum security section
of the building when he
stepped on a plywood board
covering a five-to-six-metre
deep penetration and fell part
way through.
11 September 2018 On 4 September 2020,
(prosecution commenced 4 criminal proceedings were
September 2020 and commenced in the Local discontinued 10 May 2022) Court of New South Wales
Date Incident Case reference
against John Holland Pty Ltd
for offences against section
32 of the WHS Act. The
proceedings related to an
incident on 11 September
2018 in which a bricklayer
working on the construction
of Castle Hill Station as part
of the Sydney Metro rail
project suffered severe leg
fractures after falling through
a penetration cover and
landing on a concrete floor
seven metres below. Comcare
accepted an enforceable
undertaking on 7 April 2022
and the Commonwealth
Director of Public
Prosecutions discontinued the
proceedings on 10 May 2022.
24 June 2018 An engineer working on the
West Gate Tunnel Project, a
CPB/John Holland joint
venture, is killed after
suffering severe head injuries
after being struck on the head
by a snapped piling rig cable.
1 February 2017 On 31 January 2019, criminal Wallis v John Holland Pty
(prosecution commenced 31 proceedings were Ltd [2024] WASCA 26
January 2019) commenced in the
Magistrates’ Court of
Western Australia against
John Holland Pty Ltd,
Omega Constructions Pty Ltd
and Universal Reo Pty Ltd
for offences against section
32 of the WHS Act. The
proceedings relate to an
incident on 1 February 2017
on the southern section of the
NorthLink project, for which
John Holland was the
principal contractor, in which
workers were moving a load
of steel posts with a
telescopic handler, when a
worker who was walking
beside the vehicle and
attempting to stabilise the
Date Incident Case reference
load had the telescopic
handler strike him in the leg,
causing severe fractures.
John Holland Pty Ltd sought
to have the prosecution
dismissed, or permanently
stayed, on the ground that the
Comcare inspector who
commenced the prosecution
was not authorised to do so.
That application was
dismissed by the WA
Magistrates’ Court. That
decision was overturned on
appeal to the WA Supreme
Court, but affirmed on further
appeal to the WA Court of
Appeal, which overturned the
decision of the Supreme
Court.
5 December 2009 On 5 December 2009, Danny Coroners Court of
Cheney, an employee of John Queensland, Inquest into
Holland Pty Ltd, was killed the death of Danny George
while installing spacers on Cheney, file no. 2009/3029
HV transmission lines on the
Strathmore Ross Project. A
coronial inquest found that
Mr Cheney’s death resulted
from him deviating from the
requirements in an Activity
Method Statement because of
a gap in his knowledge about
the difference between
earthing and bonding, and the
circumstances in which each
is applied, and that he had
been exposed to different
practices and procedures
during his work with John
Holland but had received no
formal training on those
matters, or formal
qualifications that covered
them.
Appendix 2: John Holland’s abysmal safety record
CASE 1: Comcare v John Holland Pty Ltd (No 2) [2009] FCA 1515
Mark McCallum was working at the Dalrymple Bay Coal Terminal in Queensland on 6 March 2008. The work involved the transportation of precast concrete decks by a platform supported by two jinkers propelled by a front end loader. Mr McCallum’s leg became caught amongst wooden scaffolding planks as the wheels of the front jinker began to press down and run over the planks. Another employee working alongside him believed that he could not safely assist Mr McCallum to free himself so he ran to the right side of the jetty so that he could see a third employee to signal for the transportation unit to stop. The unit stopped a few seconds later but by this time the front wheels of the front jinker had passed over Mr
McCallum’s trapped body. Emergency assistance was requested and a paramedic arrived at the scene, but nothing could be done to assist Mr McCallum who had suffered fatal injuries. The company admitted that its conduct had caused Mark McCallum’s tragic death.
It did not carry out a plant hazard assessment for the piece of plant that killed Mr McCallum. An assessment would likely have identified a need for a remote braking system and radio protocol that would have prevented this tragedy.
The Court said:
“The dangers were obvious from the start, relatively simple to avoid, but unrecognised and unaddressed in a manner which raises the objective gravity of the offence …towards the higher end of the scale”
And:
“The size of the plant involved, the vulnerability of workers in front of it, and the very real risk of serious injury or death in the absence of a fail-safe means of immediate emergency communication does suggest a systemic failure by the respondent rather 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” as contended by the respondent”.
John Holland was fined $180,000.00.
CASE 2: Comcare v John Holland Pty Ltd [2009] FCA 771
This case concerned a contravention at a worksite at Koolyanobbing railway siding in Western Australia, where the repair of rail tracks was being undertaken in November 2007. Welding activities were being undertaken, at the company’s behest and direction, unsafely, near a fuel source. A fire broke out and an employee suffered second degree burns to 20% of his body.
The Court said that the company’s conduct was objectively serious and that the consequences could have been far more serious but for immediate action taken by another employee. It found that the injured employee had never seen the company’s documentary procedures relating to refuelling in proximity to a heat source. A fine of $124,960 was imposed.
31
CASE 3: Comcare v John Holland Pty Ltd [2012] FCA 449
The incident that caused Wayne Moore’s death occurred on 19 March 2009 at the Mount Whaleback mine in WA. Unsecured grid mesh Mr Moore was standing on and which had not been secured in accordance with Australian standards when it was laid, gave way, causing him to fall 10 metres and sustain fatal injuries.
Two previous incidents involving grid mesh falling to the ground, labelled by the Court as ‘near misses’, had occurred just days before. Significantly, John Holland Pty Ltd had failed to report these incidents (of which its management had actual notice) to the SRCC. No action was taken after these earlier incidents to rectify a serious occupational health and safety issue.
The Court said there were measures open to John Holland Pty Ltd that were reasonably practicable and would have prevented Mr Moore’s tragic death. Specifically, it found that there were no adequate reporting procedures in place in regards to the incidents. The Court was minded to impose the maximum penalty of $242,000 available under the Act. The incident was the result not of inadvertence by an employee, but a fundamental systematic failure by John Holland Pty Ltd.
The Court lamented that the maximum penalty imposed was insignificant compared with the loss of human life and that large corporations like John Holland Pty Ltd might be expected by the community to pay substantially more than the prescribed maximum penalty in the circumstances.
John Holland gave an undertaking to ensure that they would “use their best endeavours to observe and implement industry best practice in relation to work health and safety”.
CASE 4: Comcare v John Holland Pty Ltd [2014] FCA 1191
On 30 December 2011 Anthony Phelan was working on sinking of the railway tracks to and from Perth
Central railway station. He was operating a high pressure water and air mist hose cleaning debris from the rail tracks. He was wearing earplugs. At the same time, about 160 metres further up the rail tracks was a hi-rail vehicle. The hi-rail vehicle was located on a decline. During the offtracking process, the hi-rail vehicle lost its braking capability. It started descending the decline gathering momentum as it went.
The employee operating the vehicle lost control of it. He sounded the vehicle’s warning horn. Mr Phelan was directly in the path of the runaway vehicle. There were warning shouts from other workers. Mr Phelan apparently did not hear the warning horn or shouts because of the earplugs he was wearing and the noise from the hose he was using. The hirail vehicle struck him and he was fatally injured.
The accident that killed Anthony Phelan was determined by the Court to have been foreseeable. The Court said neither John Holland Group company had taken steps identified by both of them to be necessary to discharge their obligations in relation to their employee’s safety. This was made worse by the fact that the companies had been sent a safety notice by the Office of Rail Safety Western Australia following a similar incident involving a runaway vehicle before the death of Mr Phelan and had failed to take remedial action. That notice advised the companies of the need to restrain vehicles to prevent the potential for
‘runaway’. The Court noted that the death of Mr Phelan was the third fatal accident in 5 years that had occurred at sites JH Pty Ltd controlled.
32
It concluded: The need to remind the (companies) of the importance of constant vigilance in relation to workplace safety, is particularly important because (they) operate in an industry which on a daily basis requires their employees to carry out inherently dangerous activities or to operate, and work in the vicinity of, vehicles which have the propensity to put their lives at risk. Constant vigilance was not present in the circumstances of this tragic case. The result was that a man lost his life… The two JHG companies were fined $180,000 each.
CASE 5: Comcare v John Holland Pty Ltd [2015] FCA 388
John Holland Pty Ltd failed to take all reasonably practicable steps to protect the health and safety of its employees in relation to an incident that occurred on 1 December 2011 on the Airport Link Tunnel project in Brisbane. The incident involved a metal bridge being dislodged and falling to the ground, striking an employee of John Holland in the head. The employee, Alexander Hogg, suffered serious lacerations and other injuries. Other employees were also exposed to risk or injury from the dislodgement of the metal bridge. The Court found that the company had: - failed to conduct a formal risk assessment; - failed to provide the work crew with any information or training; - failed to take steps reasonably practicably open to it which would have enabled maintenance of a safe working environment. The event that led to Mr
Hogg being injured was foreseeable. The Federal Court imposed a $110,000 fine on John Holland Pty Ltd.
CASE 6: Comcare v John Holland Pty Ltd [2015] FCA 388
In June 2016, John Holland pleaded guilty in the Adelaide Magistrate’s Court to two charges of failing in its work health and safety duty during construction of the city’s South Road Superway, in an incident that endangered the lives of two Adelaide motorists. A 40 kilogram section of concrete pipe broke off and fell around 15 metres into evening peak hour traffic. The pipe snapped because it was not properly supported.
The company was convicted and fined $130,000 in what was the first criminal prosecution brought by federal regulator Comcare under the Commonwealth Work Health and Safety Act. The Court found John
Holland did not carry out a risk assessment for the job or ensure the work was done safely, exposing the drivers to the risk of serious injury or death.
This was the first criminal OHS prosecution against John Holland.
CASE 7: Comcare v John Holland Pty Ltd [2016] FCA 501
On 29 September 2011, Sam Beveridge, a 40 year old diesel fitter employed by John Holland Pty Ltd on the Brisbane Airport Link project died after being struck by a falling beam whilst performing work on the formwork that was used to pour suspended concrete slabs which formed the roof of the tunnel. Mr.
Beveridge suffered severe crush injuries to his head, neck and chest. He died in hospital two days later.
John Holland admitted it failed to provide Mr Beveridge with training on risk or control measures for the work, or a safe system of work for the cutting of the formwork. “In this case there was a clear failure to take all reasonably practicable steps to ensure this work was carried out safely,” the CEO of Comcare said after the decision. “Detailed risk assessments are fundamental requirements in identifying hazards and ensuring the health and safety of workers, and that did not happen here.” The company was fined
$170,000.
33
Claims performance and incidence statistics
To help you compare claims statistics for organisations in the Comcare scheme, we provide scheme claim performance and claims incidence data.
Under section 69 of the Safety, Rehabilitation and Compensation Act 1988 ,
Comcare has a function to conduct and promote research into, and publish material relating to, the rehabilitation of employees and the incidence and prevention of injury to employees.
For scheme level data, trends and analysis see our Scheme performance - overview and Workers’ compensation statistics.
The tables below provide entity level data across four indicators.
Scheme claim performance
Scheme claim performance for different sectors
Table 1: Scheme claim performance for different sectors
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
Scheme 2020-21 410,350 15.2 11.1 6.7 6.0
2021-22 446,407 12.8 9.5 6.0 6.2
2022-23 451,965 13.5 9.7 5.8 6.2
Premium 2020-21 186,126 7.9 4.9 3.5 11.6
Payers
2021-22 196,156 6.5 4.1 3.1 12.0
2022-23 194,670 7.6 4.3 3.0 13.2
Licensees 2020-21 224,224 21.1 16.3 9.3 5.3
2021-22 250,251 17.8 13.8 8.3 5.6
2022-23 257,295 17.9 13.8 8.0 5.6
Claims incidence
Employers with 5000 or more FTE
Table 2: Claims incidence for employers with 5000 or more full-time employees (FTE)
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
Australian Government premium payers
Australian Federal 2020-21 6,715 33.2 28.0 22.5 15.8
Police
2021-22 6,966 27.3 20.1 18.9 17.4
2022-23 6,950 27.2 18.3 18.0 17.1
Australian 2020-21 18,080 3.7 0.8 0.5 11.7
Taxation Office
2021-22 18,445 3.0 0.6 0.7 5.9
2022-23 18,369 4.0 0.5 0.5 4.5
Commonwealth 2020-21 6,239 5.9 4.3 1.9 4.4
Scientific and
Industrial
2021-22 6,252 3.2 2.2 1.3 36.5
Research
Organisation
2022-23 6,505 8.6 6.5 3.5 6.0
Department of 2020-21 16,452 9.8 6.8 4.0 7.9
Defence
2021-22 15,821 9.7 6.8 4.7 14.2
2022-23 16,991 8.4 5.9 3.3 18.7
Department of 2020-21 13,304 10.1 4.7 4.5 8.4
Home Affairs
2021-22 12,817 9.0 5.5 4.9 11.8
2022-23 13,691 8.5 4.9 4.6 13.2
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Services Australia 2020-21 27,896 7.7 2.9 3.0 9.8
2021-22 29,188 5.9 2.2 2.2 8.6
2022-23 26,150 9.1 2.8 2.8 8.1
Self-insured licensees
Australia and New 2020-21 1,540 0.6 N/A N/A N/A
Zealand Banking
Group1
2021-22 18,716 2.0 1.2 0.8 10.9
2022-23 19,193 2.6 1.4 0.8 8.6
ACT Government 2020-21 25,172 27.5 22.4 16.3 6.9
2021-22 27,227 20.6 17.4 12.9 8.6
2022-23 27,922 20.5 16.8 12.0 7.3
Australian Postal 2020-21 27,591 70.3 59.5 34.5 5.2
Corporation
2021-22 27,914 61.2 49.6 29.0 4.9
2022-23 28,545 61.4 51.3 29.0 5.4
Cleanaway 2020-21 6,394 32.4 22.5 15.0 3.9
Operations
2021-22 6,477 34.0 25.5 16.2 4.0
2022-23 7,954 30.7 23.1 16.1 5.0
Commonwealth 2020-21 26,487 2.9 1.5 0.9 8.6
Bank of Australia
Ltd
2021-22 30,312 2.6 1.5 1.2 8.5
2022-23 33,259 2.7 1.6 0.8 10.3
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
FedEx Express 2020-21 5,245 55.1 38.9 17.0 4.9
Australia Pty Ltd
2021-22 5,649 43.4 36.1 19.3 6.7
2022-23 5,542 41.0 29.1 14.8 5.2
Linfox Australia 2020-21 5,630 13.5 5.0 2.3 17.1
Pty Ltd
2021-22 5,722 11.4 4.4 2.1 12.3
2022-23 5,779 13.0 3.6 2.2 6.4
National Australia 2020-21 26,093 2.6 1.4 0.7 5.1
Bank Limited
2021-22 26,184 2.1 1.6 1.2 11.7
2022-23 27,743 2.0 1.2 0.9 11.7
Optus 2020-21 6,986 4.2 3.0 1.1 8.8
Administration Pty
Limited
2021-22 6,633 2.6 1.4 0.6 5.4
2022-23 5,952 6.9 3.7 1.2 2.0
Ramsay Health 2020-21 11,457 12.4 6.7 3.3 3.4
Care Australia Pty
Limited2
2021-22 19,819 15.5 10.7 8.3 4.8
2022-23 20,166 14.4 10.9 8.7 4.6
Telstra Limited3 2022-23 12,036 3.1 1.8 0.4 N.P
Virgin Australia 2020-21 5,703 14.7 10.7 6.5 7.6
Airlines Pty Ltd
2021-22 4,020 34.1 24.6 17.2 3.3
2022-23 5,551 27.0 22.2 13.9 3.3
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Wilson Security 2020-21 5,041 16.7 8.3 5.6 6.3
Pty Ltd
2021-22 5,031 10.3 6.6 5.8 5.0
2022-23 5,052 9.5 4.9 3.0 8.8
1. Licence commenced 1 June 2021
2. Licence commenced 1 December 2020
3. Licence commenced 8 December 2022
Employers with between 1000 and 4999 FTE
Table 3: Claims incidence for employers with between 1000 and 4999 full-time employees
(FTE)
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
Australian Government premium payers
Airservices 2020-21 3,353 12.5 10.1 3.0 7.9
Australia
2021-22 3,255 17.5 11.4 2.5 5.2
2022-23 3,280 23.5 19.5 10.1 7.5
Attorney-General's 2020-21 1,807 2.2 2.2 1.1 N.P
Department
2021-22 1,896 1.1 N/A 1.1 N.P
2022-23 1,788 2.8 2.2 1.7 N.P
Australian 2020-21 4,026 5.2 3.7 2.2 15.0
Broadcasting
Corporation
2021-22 4,155 3.1 1.9 1.7 14.5
2022-23 4,123 4.1 2.4 1.7 13.7
Australian Bureau 2020-21 3,379 3.8 2.7 1.8 23.3
of Statistics
2021-22 3,520 4.3 2.0 2.3 17.1
2022-23 3,293 3.6 2.1 1.5 10.2
Australian Bureau 2021-22 1,678 11.3 10.7 6.0 26.1
of Statistics
Census Group
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Australian 2020-21 1,166 1.7 0.9 2.6 N.P
Competition and
Consumer
2021-22 1,195 2.5 2.5 2.5 N.P
Commission
2022-23 1,281 3.9 N/A 0.8 N/A
Australian Nuclear 2020-21 1,362 4.4 3.7 0.7 N.P
Science and
Technology
2021-22 1,333 8.3 3.8 6.0 4.6
Organisation
2022-23 1,363 8.8 9.5 4.4 N.P
Australian Rail 2020-21 2,038 4.4 3.4 2.0 N.P
Track Corporation
Ltd
2021-22 2,306 7.4 3.0 2.6 6.0
2022-23 2,350 4.3 3.4 0.9 N.P
Australian 2020-21 2,008 2.0 1.5 N/A N/A
Securities and
Investments
2021-22 1,947 2.6 1.0 0.5 N.P
Commission
2022-23 1,849 1.6 0.5 N/A N/A
Australian Signals 2020-21 2,038 2.9 2.9 1.5 N.P
Directorate
2021-22 2,319 2.2 2.2 1.7 N.P
2022-23 2,741 1.8 0.4 0.4 N.P
Bureau of 2020-21 1,532 3.9 3.9 2.6 N.P
Meteorology
2021-22 1,569 3.2 1.9 1.3 N.P
2022-23 1,628 6.1 1.8 0.6 N.P
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Department of 2022-23 4,828 8.9 5.2 3.9 9.1
Agriculture,
Fisheries and
Forestry4
Department of 2022-23 2,408 12.9 10.4 5.0 21.0
Climate Change,
Energy, the
Environment and
Water4
Department of 2022-23 1,165 5.2 3.4 0.9 N.P
Education4
Department of 2022-23 2,880 3.1 1.7 0.7 N.P
Employment and
Workplace
Relations4
Department of 2020-21 3,249 6.5 3.4 1.8 7.9
Finance
2021-22 3,039 9.2 6.6 1.3 5.6
2022-23 3,353 7.8 3.6 0.6 N.P
Department of 2020-21 3,658 6.6 4.9 3.3 18.8
Foreign Affairs and
Trade
2021-22 4,577 2.6 1.3 1.1 N.P
2022-23 4,314 5.3 3.7 1.2 N.P
Department of 2020-21 4,135 4.1 2.9 1.5 17.5
Health and Aged
Care
2021-22 4,923 4.3 2.0 2.4 29.2
2022-23 4,514 4.7 2.2 2.2 31.6
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Department of 2020-21 3,111 7.1 4.2 2.9 13.4
Industry, Science
and Resources
2021-22 3,163 3.2 1.9 1.6 7.2
2022-23 2,938 5.4 3.4 1.7 N.P
Department of 2020-21 1,597 16.3 9.4 0.6 N.P
Infrastructure,
Transport,
Regional 2021-22 1,817 14.3 11.0 0.6 N.P
Development,
Communications
and the Arts 2022-23 1,872 13.4 8.0 1.6 N.P
Department of 2020-21 2,109 7.1 4.3 2.8 6.7
Social Services
2021-22 2,356 5.9 3.8 4.2 11.7
2022-23 2,188 4.6 3.2 2.7 N.P
Department of the 2020-21 1,008 2.0 1.0 1.0 N.P
Prime Minister and
Cabinet
2021-22 1,088 2.8 0.9 N/A N/A
2022-23 1,012 1.0 2.0 1.0 N.P
Department of the 2020-21 1,143 N/A N/A N/A N/A
Treasury
2021-22 1,341 2.2 1.5 0.7 N.P
2022-23 1,538 1.3 0.7 1.3 N.P
Department of 2020-21 1,651 7.9 4.8 3.0 15.0
Veterans' Affairs
2021-22 2,027 5.9 2.5 3.0 44.0
2022-23 2,193 8.7 3.6 2.7 14.0
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Federal Court 2020-21 1,132 7.1 5.3 2.7 N.P
Statutory Agency
2021-22 1,242 3.2 1.6 1.6 N.P
2022-23 1,347 4.5 2.2 2.2 N.P
Hearing Australia 2020-21 1,151 1.7 1.7 0.9 N.P
2021-22 1,154 4.3 0.9 N/A N/A
2022-23 1,193 5.9 3.4 3.4 N.P
IP Australia 2020-21 1,038 1.9 1.0 N/A N/A
2021-22 1,053 3.8 2.8 0.9 N/A
2022-23 1,054 0.9 0.9 2.8 N.P
National Disability 2020-21 3,979 8.0 4.3 4.0 25.0
Insurance Agency
2021-22 4,467 4.9 3.8 3.1 29.7
2022-23 4,809 6.4 3.5 2.9 20.2
National 2020-21 1,157 12.1 7.8 6.9 29.5
Indigenous
Australians
2021-22 1,156 4.3 6.1 5.2 29.7
Agency
2022-23 1,270 7.9 6.3 4.7 20.8
NBN Co Limited 2020-21 5,386 5.8 4.6 1.7 8.4
2021-22 4,675 5.8 4.9 1.9 5.8
2022-23 4,712 3.4 1.5 0.4 2.2
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Special 2020-21 1,185 1.7 0.8 0.8 N/A
Broadcasting
Service
2021-22 1,249 2.4 2.4 N/A N/A
2022-23 1,320 3.0 3.0 N/A N/A
Self-insured licensees
Australian National 2020-21 4,253 4.7 3.5 1.9 4.3
University
2021-22 4,154 3.6 1.4 1.4 4.9
2022-23 4,257 5.6 3.8 2.6 6.5
Bis Industries 2020-21 946 35.9 21.1 16.9 6.0
Limited
2021-22 1,272 29.9 15.7 11.8 4.8
2022-23 1,037 49.2 39.5 22.2 8.2
BWA Group 2020-21 3,334 3.6 2.1 0.6 12.5
Services Pty Ltd
2021-22 3,366 3.6 1.5 1.5 9.6
2022-23 3,242 2.5 1.9 1.5 9.6
CSL Limited 2020-21 2,490 2.4 N/A N/A N/A
2021-22 2,502 2.0 N/A N/A N/A
2022-23 2,759 1.4 N/A N/A N/A
DHL Express 2020-21 1,221 33.6 26.2 21.3 3.8
(Australia) Pty Ltd
2021-22 1,323 21.2 18.1 14.4 3.9
2022-23 1,523 20.4 11.8 7.9 6.4
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
DHL Supply Chain 2020-21 3,030 18.8 11.6 2.6 3.3
(Australia) Pty Ltd
2021-22 2,900 10.7 5.9 1.7 1.9
2022-23 3,274 15.9 10.7 4.9 2.9
John Holland 2020-21 3,600 9.7 8.6 2.2 3.3
Group Pty Ltd
2021-22 3,644 10.7 9.3 1.9 4.9
2022-23 3,768 9.8 6.6 0.3 N.P
John Holland Pty 2020-21 1,603 102.9 96.1 28.1 2.2
Ltd
2021-22 1,429 102.2 96.6 24.5 4.0
2022-23 1,034 122.8 111.2 18.4 4.0
K&S Freighters Pty 2020-21 2,100 41.0 29.5 19.5 6.2
Limited
2021-22 2,000 36.0 31.0 22.0 3.4
2022-23 2,000 33.0 24.5 18.0 3.2
Linfox Armaguard 2020-21 1,726 16.8 1.7 1.7 N.P
Pty Ltd
2021-22 1,546 13.6 3.9 1.3 N.P
2022-23 1,531 9.1 3.3 2.6 N.P
Medibank Private 2020-21 1,883 4.2 4.8 4.2 18.3
Limited
2021-22 1,772 4.0 2.8 2.3 17.1
2022-23 1,905 5.8 4.2 2.6 4.4
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
MLC Wealth 2020-21 2,576 0.4 N/A N/A N.P
Limited5
Pacific National 2020-21 2,540 20.1 13.8 7.1 5.1
Services Pty Ltd
2021-22 2,518 19.1 12.7 5.2 5.1
2022-23 2,684 23.1 14.2 6.7 3.4
Reserve Bank of 2020-21 1,348 N/A N/A N/A N/A
Australia
2021-22 1,348 N/A N/A N/A N/A
2022-23 1,348 3.0 1.5 1.5 N.P
Ron Finemore 2020-21 793 17.7 15.1 8.8 2.0
Transport Services
Pty Limited
2021-22 1,109 41.5 37.9 23.4 3.9
2022-23 1,374 25.5 21.1 17.5 5.4
Star Track Express 2020-21 3,556 45.6 39.4 21.1 5.4
Pty Limited
2021-22 3,630 41.3 34.2 19.3 7.6
2022-23 3,527 54.2 47.9 24.4 7.0
Telstra 2020-21 21,359 6.9 4.7 1.6 5.7
Corporation
Limited
2021-22 21,389 7.2 5.2 1.4 7.1
2022-23 1,185 10.5 7.6 2.8 8.2
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Thales Australia 2020-21 3,458 11.9 10.1 4.9 4.0
Limited
2021-22 3,250 11.7 9.8 3.4 3.4
2022-23 3,597 11.4 7.5 2.5 6.2
4. Established 1 July 2022
5. Licence ceased 1 June 2021
Employers with between 500 and 999 FTE
Table 4: Claims incidence for employers with between 500 and 999 full-time employees (FTE)
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
Australian Government premium payers
Administrative 2020-21 752 9.3 8.0 4.0 N.P
Appeals Tribunal
2021-22 837 3.6 1.2 1.2 N.P
2022-23 827 4.8 2.4 1.2 N.P
Aged Care Quality 2020-21 551 7.3 3.6 N/A N.P
and Safety
Commission
2021-22 778 3.9 2.6 1.3 N/A
2022-23 988 9.1 6.1 4.0 N.P
Australian 2020-21 431 4.6 4.6 2.3 N/A
Communications
and Media
2021-22 444 2.3 2.3 4.5 N.P
Authority
2022-23 520 3.8 N/A 1.9 N/A
Australian Criminal 2020-21 728 1.4 N/A N/A N/A
Intelligence
Commission
2021-22 712 2.8 N/A N/A N/A
2022-23 763 3.9 1.3 N/A N/A
Australian 2020-21 678 10.3 4.4 8.8 17.1
Electoral
Commission
2021-22 3,235 4.6 2.8 1.9 36.6
2022-23 817 8.6 8.6 8.6 10.9
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Australian 2020-21 789 N/A N/A 1.3 N/A
Prudential
Regulation
2021-22 815 1.2 N/A N/A N/A
Authority
2022-23 831 1.2 N/A N/A N/A
Australian Trade 2020-21 774 N/A 1.3 1.3 N/A
and Investment
Commission
2021-22 909 N/A N/A N/A N/A
2022-23 950 1.1 1.1 1.1 N.P
Civil Aviation 2020-21 815 6.1 2.5 2.5 N.P
Safety Authority
2021-22 831 8.4 2.4 2.4 N.P
2022-23 832 3.6 1.2 2.4 N.P
Comcare 2020-21 611 16.4 9.8 8.2 10.0
2021-22 613 N/A 1.6 1.6 N.P
2022-23 619 9.7 4.8 1.6 N/A
Defence Housing 2020-21 506 5.9 4.0 2.0 N.P
Australia
2021-22 514 3.9 1.9 N/A N/A
2022-23 542 5.5 1.8 3.7 N.P
Department of 2020-21 914 14.2 12.0 7.7 3.0
Parliamentary
Services
2021-22 961 3.1 1.0 4.2 3.3
2022-23 952 11.6 6.3 2.1 N.P
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Fair Work 2020-21 819 1.2 1.2 3.7 N.P
Ombudsman
2021-22 874 2.3 N/A N/A N/A
2022-23 840 6.0 2.4 1.2 N.P
Geoscience 2020-21 573 3.5 8.7 3.5 N.P
Australia
2021-22 592 3.4 1.7 1.7 N/A
2022-23 600 5.0 3.3 1.7 N/A
Snowy Hydro 2020-21 626 1.6 1.6 1.6 N/A
Limited
2021-22 651 6.1 4.6 N/A N/A
2022-23 721 5.5 4.2 N/A N/A
Self-insured licensees
Bevchain Pty 2021-22 859 12.8 1.2 1.2 N.P
Limited6
2022-23 868 17.3 2.3 N/A N/A
Border Express 2020-21 993 36.3 25.2 13.1 8.2
Pty Ltd
2021-22 993 30.2 28.2 23.2 5.3
2022-23 993 28.2 22.2 13.1 4.8
Prosegur Australia 2020-21 835 43.1 26.3 14.4 3.0
Pty Limited
2021-22 795 27.7 21.4 11.3 4.1
2022-23 799 42.6 30.0 10.0 3.9
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Visionstream Pty 2020-21 1,133 15.0 12.4 5.3 3.3
Ltd
2021-22 1,133 11.5 6.2 0.9 1.2
2022-23 835 13.2 6.0 N/A N/A
6. Licence commenced 1 July 2021
Employers with less than 500 FTE
Table 5: Claims incidence for employers with less than 500 full-time employees (FTE)
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Incidence per 1000 FTE Weeks
employees
Australian Government premium payers
Australian 2020-21 16,186 6.7 4.7 3.5 23.3
Government
Premium Payers
2021-22 16,705 4.9 3.7 2.5 7.2
with under 500
FTE
2022-23 17,850 6.8 4.5 2.1 27.2
Self-insured licensees
Amplitel Pty Ltd7 2022-23 15 N/A N/A N/A N/A
Australian Air 2020-21 343 37.9 23.3 20.4 12.5
Express Pty Limited
2021-22 243 45.3 41.2 24.7 14.5
2022-23 234 21.4 21.4 21.4 21.0
Colonial Services 2020-21 1,684 1.8 0.6 N/A N.P
Pty Limited8
2021-22 99 50.5 20.2 20.2 N/A
2022-23 N/A N/A N/A N/A N/A
Commonwealth 2020-21 448 2.2 2.2 N/A N.P
Insurance Limited9
2021-22 519 3.9 N/A N/A N/A
2022-23 131 N/A N/A N/A N/A
Sector Year FTE Claims Claims Reached Median
lodged accepted one incapacity
week weeks
lost time
Commonwealth 2020-21 2,946 1.7 1.0 1.0 7.2
Securities Limited10
2021-22 2,094 1.4 0.5 0.5 N.P
2022-23 N/A N/A N/A N/A N.P
Fleetmaster 2020-21 362 41.4 24.9 22.1 3.4
Services Pty Ltd
2021-22 362 24.9 11.0 11.0 3.4
2022-23 362 16.6 11.0 8.3 N.P
John Holland Rail 2020-21 185 64.9 59.5 27.0 N.P
Pty Ltd
2021-22 175 45.7 51.4 17.1 6.0
2022-23 6 333.3 166.7 N/A N/A
StarTrack Retail Pty 2020-21 140 28.6 28.6 14.3 N.P
Ltd
2021-22 123 24.4 16.3 N/A N.P
2022-23 104 28.8 9.6 N/A N/A
7. Licence commenced 8 December 2022
8. Licence ceased 30 June 2023
9. Licence ceased 1 October 2022
10. Licence ceased 30 June 2023
Data use and definitions
Use of the data
General caution should be taken if using these data to assess relative performance of
employers, as outcomes in a single year may be subject to a number of unique factors.
Multiple year comparisons may be subject to changes in the nature of an employer’s work
and workforce as well as variation due to small numbers.
If these data are used in conjunction with agency premium rates, it should be noted that
premium rates are also influenced by other factors such as the duration of incapacity and
costs of medical and rehabilitation services.
Data may vary when compared to other publications (such as the Comcare and
Commission Annual Reports, the Comcare Scheme workers’ compensation statistics and
the Scheme Performance webpage) due to maturation of data and differing dates of data
extractions.
Reading the tables
Premium payers for this purpose are Commonwealth government agencies and statutory
authorities, but excluding members of the Australian Defence Force. Self-insured
licensees are the Australian Capital Territory Government and national employers who
have been granted a self-insurance license for workers’ compensation by the Safety,
Rehabilitation and Compensation Commission.
Employers are scheme entities that were members of the Comcare scheme at 30 June
2023. Where an organisation had been impacted by Machinery of Government changes
in the periods covered by these data, claims performance has been attributed to the
entity’s functions/responsibilities as at 30 June 2023.
Incidence of claims lodged is the number of claims lodged by employees, per 1000 full
time equivalent.
Incidence of accepted claims is the number of currently accepted claims with an initial
determination (whether accepted or rejected) in the period, per 1000 full time equivalent.
Incidence of serious claims is the number of claims initially determined in the reporting
period with one week or more lost time, per 1000 full time equivalent.
Median lost time (weeks) is the middle point of recorded incapacity weeks for accepted
claims that have had one week or more lost time.
The claims data includes claims within the reporting period excluding deleted and
takeover claims.
Symbols
The claims data includes claims within the reporting period excluding withdrawn, deleted and takeover claims.
N.P.—not published as insufficient (less than five) accepted claims with lost time to derive
robust median.
N/A—not applicable, due to nil instances of relevant claims for period.
Page last reviewed: 24 August 2023
Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au
Date printed 17 Apr 2024 https://www.comcare.gov.au/scheme-legislation/scheme-performance/claims-performance