In Comcare v Commonwealth of Australia (2009) 257 ALR 462, the Federal Court of Australia fined the Commonwealth $210,100 following a prosecution brought against it by Comcare for a contravention of the Occupational Health and Safety Act 1991 (Cth) (the OHS Act) by the Australian Army Cadets (AAC). The maximum civil penalty available under the OHS Act is $242,000.

Background

There were two aspects to the proceedings: one aspect related to the supply of food containing peanuts to cadets during a three-day training course, despite a number of cadets advising of severe food allergies. The second aspect related to losing a number of cadets in the same course for 18 hours.

In relation to the food allergy, a 13 year old cadet died after ingesting food containing peanuts which had been supplied to him as part of a ration pack. This was despite the fact that the cadet’s parents had informed Scotch College Cadet Unit staff of his severe peanut allergy.

Under section 16(1) of the OHS Act, an employer must take all reasonably practicable steps to protect the health and safety at work of its employees. The OHS Act, through a Ministerial Declaration, deems cadets undertaking cadet activities to be employees of the Commonwealth. The Scotch College Cadet Unit is a unit of the AAC and the Chief of the Army, as the relevant employing authority for the AAC, owed the duty to the cadet.

At the time of the incident, the AAC’s Policy Manual required the listing of medical conditions including allergies and for the list to be available when an emergency occurred. It did not require the information to be circulated in relation to the distribution of food to cadets, and the information was not provided to the person who distributed the food to the Scotch College cadets.

As to the second aspect, during a navigation exercise, six cadets were left alone in the bush without radio communication equipment for 18 hours. This was despite a risk assessment for the exercise which required the group to retain communications equipment.

Enforceable undertakings

The case is the first judicial consideration of the enforceable undertakings provisions of the OHS Act. The OHS Act provides that one of the civil remedies available for a breach of section 16(1) is the giving of written undertakings to Comcare pursuant to clause 16 of Schedule 2 of the OHS Act. The proceedings raised interesting points about the way the written undertakings provisions of the OHS Act are to operate in practice.

In the present case, the Court was asked by the parties to adjourn the second aspect of the proceeding pursuant to clause 16(3) of Schedule 2 of the OHS Act as both Comcare and the Commonwealth intended that the proceedings would be struck out without a declaration being made about the Commonwealth’s contravention of the OHS Act, provided that it did not default on the terms of the enforceable undertakings it would provide to Comcare. However, it is not stipulated in the OHS Act whether the adjournment ordered is ever to come to an end.

North J took the view that while it may be the general intent of the section, the result may not be available in this case as the undertaking provided by the Commonwealth effectively involved an admission of the contravention. Under clause 2(1)(a) of Schedule 2 of the OHS Act, the Court is obliged to make a declaration of a contravention if it considers that the person has breached the general duty in section 16(1) of the OHS Act. This aspect of the proceedings has been set down for hearing on 1 April 2010, and it will be interesting to see whether a declaration of contravention is made against the Commonwealth at this time.

While his Honour did not discuss it in his reasons for judgment, we note that Schedule 2 of Comcare’s Enforcement Policy (which deals with enforceable undertakings) states that “an enforceable undertaking need not admit liability”. Accordingly, as a result of this decision, other Commonwealth employers in similar circumstances may avoid making any admissions when negotiating enforceable undertakings with Comcare.

As a result of this case, the Commonwealth provided 50 specific undertakings to Comcare. In our view, the breadth and detail of these undertakings indicate that, in order for Comcare to accept undertakings as a sufficient civil remedy under the OHS Act, the undertakings will need to be significant.

Some of the undertakings agreed to by the Commonwealth included:

  • a new warning to appear on AAC activity joining instructions regarding the inability of the Australian Defence Force to provide an environment free from the risk of severe food allergies,
  • the provision of compulsory preactivity instructions and training for all Army Cadet Staff on food allergies, allergic reactions and medical treatment of allergies,
  • the development and implementation of an Anaphylaxis Policy to be developed in conjunction with medical advisers,
  • the development of a standard operating procedure for mandatory reporting requirements for lost or overdue cadets,
  • the implementation of a revised AAC OHS Risk Management Policy and procedures, and
  • payment for publicity of the undertakings in advertisements in a daily metropolitan newspaper in the capital city of each State and Territory of Australia.

Implications

The decision demonstrates the importance of ensuring that risk management processes are linked together in an overall risk management system. For example, it is not sufficient to simply collect medical forms and consent forms and have those forms available when medical emergencies occur. Risk assessments in all facets of activities must be undertaken prior to commencing activities, be implemented in practice, be specific to the activities being undertaken and take into account the specific characteristics of the persons undertaking the activities.