Court action to resume after High Court win for WorkSafe

16 October 2009

WorkSafe Victoria has beaten a High Court challenge confirming its right to prosecute companies for alleged health and safety offences committed before they joined Comcare.

The decision means cases by WorkSafe involving alleged workplace health and safety breaches against John Holland Pty Ltd and several other companies will now be heard in Victoria.

WorkSafe charged John Holland Pty Ltd in relation to an October 2006 safety incident associated with the transport of concrete panels for Melbourne’s Eastlink tollway.

At the time, the company was operating under Victoria’s workplace health and safety laws, but several months later it became a self-insurer under Comcare and subject to the Commonwealth’s OHS law.  

John Holland Pty Ltd argued in the High Court that since it transferred to Comcare before the charges were issued, under the Australian Constitution, the Federal OHS law should prevail.

In a unanimous decision, seven High Court judges on Tuesday upheld the right of the states and territories to take action where the incident occurred before the jurisdictional change and ordered John Holland Pty Ltd to pay WorkSafe's costs.Matters that have been on-hold in other states and territories are also likely to proceed now.  

Background:

Comcare was originally set up to deal with workplace compensation and safety in Federal government departments and statutory agencies such as the ABC and CSIRO.

Since 1992, 39 companies have joined Comcare, fund their own workers compensation systems and are subject to Commonwealth OHS law.

These are large national firms that operate in multiple jurisdictions.