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Occupational Health & Safety During Refuelling Operations - Responsible Employer Fined Heavily For Isolated Breach, Where Employees' Behaviour Objectively Indicated That OH&S Systems Were Not Effective.

Article Excerpt
Comcare v John Holland Rail Pty Ltd [2009] FCA 771

In Brief

The Federal Court of Australia has imposed a penalty of $124,960 on an employer for breach of s16(1) of the Occupational Health & Safety Act 1991 (Cth), despite acknowledging that the employer took seriously its responsibility to provide a safe system of work, both prior to and after the accident.

The incident involved unsafe refuelling of a friction saw used to cut railway track, so that fuel spurted from a container under pressure and was ignited by a hot weld.

The court held that circumstances where an employee was badly burned, and where the incident "could have been far worse" indicated that the employer's OH&S compliance systems were not implemented effectively.

Background The respondent employer provided railway track maintenance services in Western Australia. In November 2008 a team of its employees was tasked to repair rail track in the Kalgoorlie area by using aluminothermic ("thermit") welding techniques. This requires cutting the rails with a friction saw and filling the cut with superheated liquid metal filler, which then cools and solidifies to form a weld.

The team was supervised by B, and included an employee D who had previous experience of thermit welding, and an employee G who did not have such experience.

The team finished a thermit weld and waited for it to cool. D noticed that the friction saw was low on fuel and asked G to retrieve a jerry can containing pre-mixed 2-stroke fuel from the team's truck. D knew that industry practice (and the employer's practice) was to remove the friction saw away from the heat source and refuel it at another location, yet for some reason on this occasion...

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