The Federal Court heralds a sign of things to come under new Work Health and Safety (WHS) laws with a focus on sharing information and consulting within Departments in Griffith J’s decision in Comcare v Commonwealth of Australia [2012] FCA 1419 under the previous Commonwealth health and safety legislation.

Key take out messages

  1. Implement

Implement effective information and communication system to share health and safety information across all sections of your department (and beyond, for horizontal consultation with other duty holders)

  1. Communicate and Share

Communicate and share all relevant health and safety information - not just matters that come to Comcare's attention or information that is provided by and to Comcare.

  1. Verify

Verify that the health and safety information sharing system works.

Comcare v Commonwealth of Australia [2012] FCA 1419

In February 2010, Army Officer Cadet Minchin (OC Minchin) was seriously injured by the unguarded moving propeller of a rigid hull inflatable boat (RHIB) when he fell from the RHIB during an Australian Defence Force Academy (ADFA) “fast boat run” training exercise (the February 2010 incident).

The Court found that the Commonwealth breached its health and safety obligations1 by failing to provide an adequately guarded outboard motor. Following the incident involving OC Minchin, fully enclosed propeller guards were immediately implemented at ADFA on all RHIBs in operation.

Information: be sure to share it

Before the February 2010 incident, there had been six incidents involving Australian Defence Force (ADF) personnel and RHIBs. ADFA was not made aware of the Comcare incident report for each of the first three incidents.

Following the second incident, the Australian Army (Army) asked the Defence Materiel Organisation (DMO) to conduct a safety case study. The DMO study results were also not reported to ADFA.

Following the third incident, the Army asked DMO to review certain relevant matters and the Army also revised certain policies and procedures in relation to RHIB usage. The DMO safety case review results and Army’s revisions were not shared with ADFA.

The parties agreed that the six previous incidents meant that the Commonwealth knew that the installation of full propeller guards would eliminate or reduce the foreseeable risk of injury from using RHIBs with unguarded propellers in training exercises.

The Federal Court found that the six previous incidents highlighted a ‘very high foreseeable risk’ of serious injury or death arising from the use of the RHIB in certain training exercises.2 Further, the failure of other areas in Defence to provide ADFA with information about the six previous incidents meant that ADFA did not have the information that might have prompted it to install full propeller guards.

Griffiths J stated that the Chief of the Defence Force (or an appropriate delegate) must consider issuing a directive or instruction to ensure that there are effective systems to communicate and share health and safety information across all sections of the ADF. Griffiths J emphasised that such health and safety information is not to be limited to matters in which Comcare is involved. It should extend beyond merely providing Comcare Reports. Griffiths J recommended a ‘proactive approach’ in this regard.3

The key message: there’s no such thing as over-sharing

While this decision was made under the old OHS laws, there are pertinent lessons that are important in the context of the new specific obligation under the WHS Act for Commonwealth departments and agencies to consult, co-ordinate and co-operate in relation to WHS matters with other duty holders – whether they are duty holders under corresponding State WHS legislation4 or other duty holders in the Commonwealth (often referred to as the horizontal consultation duty).

The information-sharing systems for safety that Griffiths J referred to in the judgment are exactly the types of systems required by the new horizontal consultation duty which has operated in the Commonwealth5 since 1 January 2012.

Similarly, acquiring work health and safety knowledge through learning from previous incidents and near misses and reports into those incidents that have relevance across an organisation would be required by element one of the due diligence obligation of officers under the new WHS laws.

With the new horizontal consultation obligation, there has been a significant focus on working out how we share information with other duty holders. The OC Minchin case also highlights the need for more sharing of information internally within departments as part of departments’ primary duty to ensure health and safety. In large departments, different branches can almost operate like separate entities but it is clear that in order to adequately control hazards and risks, lessons learnt in one part of a department need to be shared in others where similar activities may be performed. If your department or agency suffers in any way from ‘organisational silos’ within its structures, it’s time to develop proactive systems to break down those silos in order to ensure health and safety is being adequately managed.

Duty holders in the public sector (including departments and agencies) should consider the following in creating information-sharing systems to meet their horizontal consultation obligations:6

It’s not over until it’s over

The case is also a reminder that the Court may actually make its own mind up about how serious an incident is and just because you have agreed a penalty with the regulator, it doesn’t mean that the Court will not come to its own view in determining an appropriate penalty.

In highlighting the severe nature of the incident, Griffiths J rejected the $190,000 civil penalty agreed by the parties and imposed a $210,000 penalty because the matter ‘warrant[ed] a civil pecuniary penalty within a very high range’.

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