Comcare responds to attacks: ‘we investigated, took action, saw results’

By Stephen Easton

Tuesday May 26, 2015

Comcare has hit back at a lawyers’ group which questioned whether it has the regulatory capability to maintain safe working environments in big, high-risk workplaces, as the government expands the agency’s private sector business.

Most, if not all, regulatory agencies endure the dreaded “toothless tiger” tag from time to time, and the agency that enforces health and safety in federal entities isn’t taking it lying down this time. A spokesperson for the agency sent The Mandarin a long rebuttal of the claims that asserted:

“Comcare always takes strong enforcement action — including prosecutions — against employers and workers where the facts warrant it.”

Prevention, through education and proactive inspections, was an approach that was showing results better or on par with all other jurisdictions, it said.

As the government pursues extensive amendments to the legislation underpinning the agency’s workplace insurance scheme to allow more private sector companies into it, a recent court ruling against one of Comcare’s 33 current private sector clients led the Australian Lawyers’ Alliance to sound the alarm once again.

The ALA says the decision to fine building company John Holland $110,000 in the matter of a workplace injury is “evidence that the federal scheme is failing its core responsibility of regulating workplace safety” in those 33 companies, and said no more should be allowed to join them.

The Alliance’s Andrew Stone said the case confirmed John Holland had breached the occupational health and safety law several times before the injury occurred, adding that in his view: “There are too many cases like this which clearly show Comcare has a patchy record on workplace safety enforcement and oversight.”

“This case concerns a worker who had a bridge fall on his head,” Stone said in a statement. “Months earlier, a person on the same worksite was crushed to death. That case is yet to be resolved. It must be asked: where was Comcare in preventing these breaches?”

The agency says it was exactly where it should have been:

“In relation to John Holland, Comcare has a history of taking strong enforcement action when required against the company on a range of infrastructure projects, including Brisbane Airport Link.

“All work health and safety issues and concerns raised with, or identified by Comcare in relation to the project were investigated, with a number of enforcement notices and actions undertaken by Comcare and local regulators.

“We continue to work with the company and other regulators to minimise work health and safety risks at John Holland projects across Australia.”

And the spokesperson also hosed down the suggestion that it would be overwhelmed by taking more private sector employers under its umbrella, as they would pay their own way:

“It is wrong to suggest that Comcare’s inspectorate would somehow not cope with more licensees coming into the scheme. Inspections under the Comcare scheme are funded by regulatory contributions by licensees. If more corporations join the scheme, our inspectorate will grow proportionately to meet demand. We will scale up our existing operations and bolster capabilities as needed to ensure appropriate inspection and regulatory activities across a variety of industries and occupations.”

Last Friday brought news that the regulator won a case against Transpacific Industries Pty Ltd which resulted in a $363,000 fine over safety breaches that led to a woman’s death when a poorly maintained garbage truck careened into her car. The result is the largest fine from a single court action by Comcare, and the first prosecution for multiple breaches of Commonwealth work health and safety laws which resulted in an ongoing risk to health and safety. CEO Jennifer Taylor said:

“It’s also a reminder that in such cases, Comcare will not just consider the final result. We will examine every opportunity a company has had to fix these issues, and we will take appropriate enforcement action.”

The spokesperson told The Mandarin the agency’s regulatory effectiveness was backed up by the statistics for its entire jurisdiction, and pointed out it has a decent number of safety inspectors on the job:

“For 2011-12, for example, the incidence rates for serious claims per 1000 employees show Comcare recorded 6.7 claims — the lowest of all jurisdictions — compared with the Australian average of 10.9. Provisional data for 2012-13 shows a rate of 6.2 claims per 1000 employees for Comcare compared with an Australian average of 11.1 — also the lowest of any jurisdiction.

“Comcare’s inspector-to-worker ratios are already comparable to those for state and territory WHS regulators. Our ratio is higher than in New South Wales, Victoria and Western Australia, and equal to Queensland.

“Comcare’s approach to WHS management focuses on prevention — encouraging compliance through assistance and education, balanced with proactive and reactive inspections and audits. This also has to be balanced with appropriate enforcement, and we will always take action against employers and workers who do not get the work health and safety message.”

But while the numbers indicate a strong performance, the 33 private sector employers the ALA is concerned about only make up a small proportion of those regulated by Comcare, and some lawyers worry that it is not as effective as its state-based counterparts when it comes to large, complex and risky work sites like major construction projects.

Comcare’s record in overseeing safety in the large and legally complex government workplaces that are immigration detention centres, especially those on Nauru and Manus Island, has also been questioned, including by the ALA. The agency also defended itself against those claims, although its critics believe there is clearly a safety issue in offshore detention facilities that the government is unwilling to address.

A recent freedom of information disclosure to news website The Guardian Australia revealed the regulator is not always informed of all incidents in the centres by the Department of Immigration and Border Protection, putting it in a difficult position with regard to the unusual and politically sensitive workplaces, where the government is responsible for the health and safety of all people on site under work health and safety legislation.

The agency has also been criticised for its high premiums, which led the ACT Government to take its workers out of the scheme and are reportedly an ongoing sore spot for many federal agencies.

But on this score Comcare’s standing came up roses in a Senate Estimates hearing on Monday, when the outspoken clerk of the Senate Rosemary Laing said the Department of the Senate’s premium for 2014-15 had dropped by 40% to $111,000, from the 2013-14 cost of $217,000, and lower than the 2012-13 cost of $122,000. Laing agreed with Senator Penny Wong it was a good outcome, and speculated on the reasons:

“I do not know if it is entirely a reflection of our performance or perhaps a reflection of the scare that Comcare has had recently with people saying, ‘We are not going to go with them many more.'”

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